Sovereignty and the Sea: How Indonesia Became an Archipelagic State 9789814722216

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Sovereignty and the Sea Sea the and Sovereignty

Sovereignty and the Sea How Indonesia Became an Archipelagic State

John G. Butcher and R.E. Elson

© 2017 John G. Butcher & R.E. Elson Published by: NUS Press National University of Singapore AS3-01-02, 3 Arts Link Singapore 117569 Fax: (65) 6774-0652 E-mail: [email protected] Website: http://nuspress.nus.edu.sg ISBN 978-981-4722-21-6 (case) All rights reserved. This book, or parts thereof, may not be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage and retrieval system now known or to be invented, without written permission from the Publisher.

National Library Board, Singapore Cataloguing-in-Publication Data Names: Butcher, John G., 1944- | Elson, R.E. (Robert Edward), 1947- author. | NUS Press, publisher. Title: Sovereignty and the sea: how Indonesia became an archipelagic state / John G. Butcher and R.E. Elson. Description: Singapore: NUS Press, National University of Singapore, [2017] | Includes bibliographical references and index. Identifiers: OCN 960841877 | ISBN 978-981-47-2221-6 (casebound) Subjects: LCSH: Territorial waters--Indonesia. | Law of the sea--Indonesia. Classification: DDC 341.44809598--dc23

Typeset by: Infogrid Pacific Pte. Ltd. Printed by: Markono Print Media Pte Ltd

To Lorena and Elizabeth, for everything

Table of contents contents of Table

List of figures List of photographs Abbreviations used in the text and notes Abbreviated references to frequently cited proposals, negotiating texts, and conventions Glossary of technical terms Preface Acknowledgements Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12 Chapter 13 Chapter 14 Chapter 15 Chapter 16 Chapter 17 Chapter 18 Chapter 19

The “sea territory” of the Netherlands Indies The Territorial Sea and Maritime Districts Ordinance The declaration Geneva 1958 Regulation No.4 of 1960 Confrontations A new beginning The Seabed Committee 1971–72 The Seabed Committee 1973 Preparing for Caracas Caracas 1974 Negotiating with the United States Geneva 1975 New York, spring 1976 New York, summer 1976 New York 1977 To Montego Bay Reflections on the diplomatic campaign Epilogue vii

ix xi xii xiv xvi xx xxvi 1 26 46 77 98 115 135 167 199 226 247 269 289 317 350 363 393 421 427

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TABLE OF CONTENTS

Notes Notes on figures Notes on photographs Select bibliography Index

435 501 505 506 515

List of figures List figures of

1.1

The extent of the government’s jurisdiction around an island and a rock lying 6 miles from the island, as portrayed by a Ministry of Colonies official in 1905

17

Maritime districts declared by the Netherlands Indies government in 1918

22

The concept of “The sea territory (zeegebied) of the Netherlands Indies” according to the Fisheries Ordinance of 1927

24

The conception of maritime territory in the Territorial Sea and Maritime Districts Ordinance of 1935

36

Maritime jurisdictions in the vicinity of Bangka and Belitung according to the Territorial Sea and Maritime Districts Ordinance

39

3.1

The treaty limits of the Philippines

53

5.1

Indonesia’s straight baselines as speculated by the US government, 1959

111

Indonesian waters according to the map accompanying Law No.4 of 1960

113

6.1

The voyage of HMS Victorious, August-September 1964

126

6.2

Two sections of a chart issued by the British Ministry of Defence in December 1964 showing the policy to be adopted by Royal Navy ships in Indonesian-claimed waters

129

Area covered by the interim arrangement between the Indonesian government and Japanese fisheries organizations, July 1968

137

1.2 1.3 2.1 2.2

5.2

7.1

ix

x

LIST OF FIGURES

7.2

Continental shelf boundary between Indonesia and Malaysia in the South China Sea according to the agreement of October 1969

146

Continental shelf and territorial sea boundaries between Indonesia and Malaysia in the Malacca Strait

148

Continental shelf boundary between Indonesia and Australia in the Arafura Sea according to the agreement of May 1971

150

Calculating point B1 of the continental shelf boundary between Indonesia and Australia, 1971

157

The territorial sea and internal waters of the Philippines according to Republic Act No.3046 of 1961

169

Continental shelf boundary between Indonesia and Australia in the Timor Sea according to the agreement of October 1972

197

Territorial sea boundary between Indonesia and Singapore according to the agreement of May 1973

207

Indonesia’s archipelagic waters defined in accordance with the UK’s proposal, August 1973

220

10.1

Major shipping routes in the vicinity of Buru and Seram

231

16.1

Indonesia in February 1977

368

17.1

Access and fishing rights of Malaysia in the territorial sea and archipelagic waters of Indonesia lying between East and West Malaysia according to the treaty of February 1982

412

Indonesia’s archipelagic baselines and archipelagic sea lanes in 2002

431

7.3 7.4 7.5 8.1 8.2 9.1 9.2

19.1

List of photographs List photographs of

4.1 7.1 16.1 16.2 17.1

Indonesian delegation to the United Nations Conference on the Law of the Sea, Geneva, 1958

82

Indonesian and Australian delegations after negotiating an agreement on a continental shelf boundary in the Arafura Sea, 1971 158 Mochtar Kusumaatmadja giving a lecture on Indonesia’s archipelagic campaign, Jakarta, February 1977

366

Map shown by Mochtar Kusumaatmadja during his lecture in Jakarta, February 1977

367

Mochtar Kusumaatmadja signing the convention, Montego Bay, 10 December 1982

419

xi

Abbreviations used in the text and notes used Abbreviations notes and text the in

AAD Electronic Telegrams, Central Foreign Policy Files, 1973–1977, RG 59, Access to Archival Databases (NARA) (http://aad.archives.gov/aad) AALCC Asian-African Legal Consultative Committee AMBZ Archive of the (Netherlands) Ministry of Foreign Affairs (Archief van het Ministerie van Buitenlandse Zaken) AMK Archive of the (Netherlands) Ministry of Colonies (Archief van het Ministerie van Koloniën) ANRI National Archives of the Republic of Indonesia (Arsip Nasional Republik Indonesia) ASEAN Association of Southeast Asian Nations ATC air traffic control CDF Central Decimal File (Department of State Records, RG 59 (NARA)) DPR People’s Representative Council (Dewan Perwakilan Rakyat) EEZ exclusive economic zone FBIS Foreign Broadcast Information Service (Central Intelligence Agency) FRUS United States, Department of State, Foreign Relations of the United States: Diplomatic Papers (http://history.state.gov/historicaldocuments) FCO Foreign and Commonwealth Office, London FO Foreign Office, London G5 Group of Five (great maritime powers, namely, France, Japan, the United Kingdom, the United States, and the Soviet Union) G77 Group of 77 (developing countries) GOI Government of Indonesia ICJ International Court of Justice ICNT Informal Composite Negotiating Text (1977) ILC International Law Commission IMCO Inter-governmental Maritime Consultative Organization IMO International Maritime Organization inv. inventory number (NA) xii

ABBREVIATIONS USED IN THE TEXT AND NOTES

xiii

ISNT Informal Single Negotiating Text (same as the SNT) KPM Royal Packet Navigation Company (Koninklijke Paketvaart-Maatschappij) LLGDS landlocked and geographically disadvantaged states LOSC United Nations Convention on the Law of the Sea (1982) MPR People’s Consultative Assembly (Majelis Permusyawaratan Rakyat) MR Mail Report (Mailrapport) NA National Archives (Nationaal Archief), The Hague NAA National Archives of Australia, Canberra NARA National Archives and Records Administration, College Park, Maryland OAU Organization of African Unity PKI Indonesian Communist Party (Partai Komunis Indonesia) RAN Royal Australian Navy RG Record Group (NARA) RN Royal Navy (UK) RSNT Revised Single Negotiating Text (1976) SEATO Southeast Asia Treaty Organization SNT Single Negotiating Text (1975) UK United Kingdom UKNA National Archives of the United Kingdom, Kew UKC under-keel clearance UN United Nations UNCLOS United Nations Conference on the Law of the Sea (I, II, and III) (http://legal.un.org/diplomaticconferences) UNCLOS III Archives Papers of the United Nations Conferences on the Law of the Sea, Special Collections, School of Law Library, University of Virginia (http://lib.law.virginia.edu/specialcollections/records/mss/82–6) UNGA United Nations General Assembly US United States USSR Union of Soviet Socialist Republics V Verbaal (Minute)

Abbreviated references to frequently cited proposals, negotiating texts, and conventions proposals cited frequently to references Abbreviated

Note: Documents are listed in chronological order. Continental Shelf Convention Convention on the Continental Shelf, one of four conventions adopted by the UN Conference on the Law of the Sea, Geneva, April 1958. United Nations, Treaty Series, vol. 499 (1964), pp.311–31. Territorial Sea Convention Convention on the Territorial Sea and the Contiguous Zone, one of four conventions adopted by the UN Conference on the Law of the Sea, Geneva, April 1958. United Nations, Treaty Series, vol. 516 (1964), pp.206–24. L.15 “Archipelagic principles as proposed by the delegations of Fiji, Indonesia, Mauritius and the Philippines”, submitted during the spring 1973 session of the Seabed Committee (A/AC.138/SC.II/L.15). Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (New York: United Nations, 1973), A/9021, vol.3. L.18 “Cyprus, Greece, Indonesia, Malaysia, Morocco, Philippines, Spain and Yemen: draft articles on navigation through the territorial sea including straits used for international navigation”, submitted during the spring 1973 session of the Seabed Committee (A/AC.138/SC.II/L.18). Report of the Committee on the Peaceful Uses of the Sea-Bed, vol.3. L.42 “Fiji: draft articles relating to passage through the territorial sea”, submitted during the summer 1973 session of the Seabed Committee (A/AC.138/SC.II/ L.42). Report of the Committee on the Peaceful Uses of the Sea-Bed, vol.3. L.44 “United Kingdom of Great Britain and Northern Ireland: draft article on the rights and duties of archipelagic States”, submitted during the summer 1973 session of the Seabed Committee (A/AC.138/SC.II/L.44). Report of the Committee on the Peaceful Uses of the Sea-Bed, vol.3. L.48 “Fiji, Indonesia, Mauritius and the Philippines: draft article on archipelagos”, submitted during the summer 1973 session of the Seabed Committee (A/ AC.138/SC.II/L.48). Report of the Committee on the Peaceful Uses of the Sea-Bed, vol.3. xiv

ABBREVIATED REFERENCES TO FREQUENTLY CITED PROPOSALS

xv

L.4 “Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand and Norway: working paper”, submitted during the second session of UNCLOS III (Caracas), 26 July 1974 (A/CONF.62/L.4). Generally referred to as “the working paper”. UNCLOS III, Official Records, vol.3, pp.81–83. L.49 “Fiji, Indonesia, Mauritius and Philippines: draft articles relating to archipelagic States”, submitted during the second session of UNCLOS III (Caracas), 9 August 1974 (A/CONF.62/C.2/L.49). UNCLOS III, Official Records, vol.3, pp.226–27. L.64 “Malaysia: amendments to document A/CONF.62/C.2/L.49”, submitted during the second session of UNCLOS III (Caracas), 16 August 1974 (A/ CONF.62/C.2/L.64). UNCLOS III, Official Records, vol.3, pp.233–34. “Main trends” “Working paper of the Second Committee: main trends” (A/ CONF.62/L.8/REV.1, annex II, appendix I), document issued by the Second Committee after the second session of UNCLOS III (Caracas) listing alternative versions of various articles. UNCLOS III, Official Records, vol.3, 107–42. W43 “Archipelagic state”, circulated informally during the third session of UNCLOS III (Geneva, 1975) as representing the views of Fiji, Indonesia, Mauritius, and the Philippines. FCO 76/1088 (UKNA). “18 principles” “18 principles for inclusion in archipelagic articles (Bahamas)”, circulated informally by the Bahamas during the third session of UNCLOS III (Geneva, 1975). Nandan and Rosenne (eds.), Commentary, vol.2, pp.405–6. SNT Single Negotiating Text, the three-part negotiating text produced at the third session of UNCLOS III (Geneva, 1975). All references are to the text presented by the chairman of the Second Committee (A/CONF.62/WP.8/PART II). UNCLOS III, Official Records, vol.4, pp.152–71. ISNT Informal Single Negotiating Text. The same as the SNT (q.v.). RSNT Revised Single Negotiating Text, the four-part negotiating text produced at the fourth session of UNCLOS III (New York, 1976). All references are to the texts presented by the chairmen of the Second Committee (A/CONF.62/ WP.8/REV.1/PART II) and the Third Committee (A/CONF.62/WP.8/ REV.1/PART III). UNCLOS III, Official Records, vol.5, pp.151–73 and pp.173–84. ICNT Informal Composite Negotiating Text, the negotiating text produced at the sixth session of UNCLOS III (New York, 1977) (A/CONF.62/WP.10). UNCLOS III, Official Records, vol.8, pp.1–63. Convention on the Law of the Sea United Nations Convention on the Law of the Sea, opened for signature at Montego Bay, 10 December 1982. UNCLOS III, Official Records, vol.17, pp.151–221. Also available at http://www.un.org/ Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

Glossary of technical terms terms technical of Glossary

Note: An important source for technical terms related to the law of the sea is IHO, IAG, IOC Advisory Board on Law of the Sea, A Manual of Technical Aspects of the United Nations Convention on the Law of the Sea—1982, 4th edition (Monaco: International Hydrographic Bureau, March 2006), referred to here as TALOS Manual. archipelagic baselines Straight baselines “joining the outermost points of the outermost islands and drying reefs” of an archipelago that an archipelagic state may draw in accordance with the LOSC, article 47. See baseline. archipelagic sea lanes Sea lanes that, according to the LOSC, article 53(1), an archipelagic state (q.v.) may designate “for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea”. Under the LOSC, article 53(5), these sea lanes “shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points”. archipelagic sea lanes passage The regime developed during UNCLOS III for passage through and over archipelagic sea lanes (q.v.). The LOSC, article 53(3), defines archipelagic sea lanes passage as “the exercise…of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone”. archipelagic state Term used by some states during the early stages of UNCLOS III to refer to any state whose territory included an archipelago but used by Indonesia, the Philippines, and Fiji to refer only to a state made up entirely of islands. According to the LOSC, article 46, an archipelagic state “is a State constituted wholly by one or more archipelagos and may include other islands”. See archipelago. archipelagic waters Term that initially referred generally to the waters under the jurisdiction of an archipelagic state but that, as it developed during the early xvi

GLOSSARY OF TECHNICAL TERMS

xvii

1970s, came to refer specifically to the waters enclosed by archipelagic baselines (q.v.). archipelago “A group of islands” or “an expanse of water with many scattered islands” (Webster’s Ninth New Collegiate Dictionary). Defined by the LOSC, article 46, as “a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such”. baseline “The line from which the outer limits of a State’s territorial sea and certain other outer limits of coastal State jurisdiction are measured” (TALOS Manual). The Territorial Sea Convention distinguished between “normal baselines” (q.v.) and “straight baselines” (q.v.). The LOSC incorporates the concept of “archipelagic baselines” (q.v.) as well. basepoint “Any point on the baseline” (TALOS Manual). Particular basepoints may be selected in order to determine a median line (q.v.). continental margin “The offshore zone, consisting of the continental shelf [q.v.], slope, and rise, that separates the dry-land portion of a continent from the deep ocean floor” (dictionary.reference.com). The LOSC, article 76(4), provides, for purposes of the convention, a formula for determining the outer edge of the continental margin in cases where that margin extends beyond 200 miles from the baselines from which the breadth of the territorial sea is measured. continental shelf “Known, geologically and geomorphologically, as those submarine areas that extend from the shore to the point at which there is a marked fall-off (the continental slope) to the ocean floor of the deep seabed” (Sohn et al., Law of the Sea in a Nutshell (2010), p.302). Particularly after the 1945 Truman Proclamation coastal states began claiming sovereign rights to explore and exploit the natural resources of their continental shelves. The 1958 Continental Shelf Convention applied to “the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas” (article 1). According to the LOSC, article 76(1), the continental shelf of a coastal state extends to the outer edge of the continental margin (q.v.) or to 200 miles from the baselines used to measure the breadth of the territorial sea in those cases where the outer edge of the margin is less than 200 miles from those baselines. equidistance line See median line. exclusive economic zone (EEZ) Concept developed during the Seabed Committee and UNCLOS III. The LOSC defines the EEZ as “an area beyond and adjacent to the territorial sea” in which a coastal state enjoys “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed

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GLOSSARY OF TECHNICAL TERMS

and of the sea-bed and its subsoil” (articles 55 and 56). Under article 57, “The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” extended continental shelf Term used to refer to that part of a continental shelf (q.v.) lying more than 200 miles from the baselines from which the breadth of the territorial sea is measured. As a result of negotiations in the final sessions of UNCLOS III the LOSC allows coastal states to make claims to such areas of the seabed under conditions set out in the convention. high seas Generally, the seas beyond the jurisdiction of any state. Defined by the 1958 Convention on the High Seas as “all parts of the sea that are not included in the territorial sea or in the internal waters of a State”. The provisions of Part VII of the LOSC, “High seas”, apply to “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State” (article 86). innocent passage The right under international law, developed in conjunction with the concept of the territorial sea, of foreign ships to pass through a coastal state’s territorial sea as long as they do so expeditiously and without in any way threatening the security of that state. The precise extent of this right has long been the subject of intense debate, particularly as it relates to warships. The 1958 Territorial Sea Convention, which declared passage to be innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State” (article 14(4)), required submarines “to navigate on the surface and to show their flag” (article 14(6)). Unlike the Territorial Sea Convention the LOSC contains, in article 19(2), a list of activities that render passage not innocent. The right of innocent passage has never been available to aircraft. internal waters Defined by the 1958 Territorial Sea Convention, article 5(1), as “waters on the landward side of the baseline of the territorial sea” and by the LOSC, article 8(1), as “waters on the landward side of the baseline of the territorial sea” that are not archipelagic waters. A state enjoys the same sovereignty over its internal waters as it does over its land territory. The Territorial Sea Convention, article 5(2), provided for the right of innocent passage in internal waters that had previously been part of the territorial sea or the high seas before being enclosed in straight baselines. Otherwise there is no right of innocent passage in internal waters. international waters Term not used in either the 1958 conventions or in the LOSC that is often used interchangeably with “high seas” (q.v.). median line “A line every point of which is equidistant from the nearest points on the baselines of two States. It is usual to refer to ‘median line’ in the case of opposite coasts and equidistance line in the case of adjacent coasts, although this distinction is not made in the [LOS] Convention” (TALOS Manual). The median (or equidistance) line may be used to determine a maritime boundary. normal baseline “The low-water line along the coast” (TALOS Manual). See baseline.

GLOSSARY OF TECHNICAL TERMS

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straight baselines “Straight lines joining specified or discrete points on the low-water line” (TALOS Manual). See baseline and archipelagic baselines. territorial sea The belt of water of a certain breadth to which a coastal state’s sovereignty extends that is measured seaward from its baselines. The state’s sovereignty over its territorial sea is qualified only by the right of innocent passage enjoyed by foreign ships. See baseline and innocent passage. territorial waters Term used as equivalent to “territorial sea” or to refer more broadly to the waters under a state’s jurisdiction. The term does not appear in either the 1958 Geneva conventions or the LOSC. transit passage The passage regime developed during UNCLOS III for navigation through straits used for international navigation. The LOSC, article 38(2), defines transit passage as “the exercise…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”. turning point A point where one straight baseline “turns” to form another baseline.

Preface Preface

One of the distinctive features of contemporary Indonesia is that it is an archipelagic state in which the government exercises sovereignty over the waters between the islands making up the country’s land territory as well as over the islands themselves. But the nation we now call Indonesia was not born as an archipelagic state. Until the middle of the 1950s nearly all the waters lying between the islands of Indonesia were as open to the ships of all nations as were the waters in the middle of the great oceans. These waters belonged to no state nor did any state claim any form of jurisdiction over them. As a consequence, Indonesia was made up of hundreds of pieces of territory separated from one another by high seas. Then, suddenly, on 13 December 1957, the cabinet of Prime Minister Djuanda Kartawidjaja declared that the Indonesian government had “absolute sovereignty” over all the waters lying within straight baselines drawn between the outermost islands of Indonesia. These baselines, encompassing as they did all the islands making up the country, formed Indonesia—its lands and the seas over which the government now asserted sovereignty—into a single unified territory for the first time. The declaration alarmed neighbouring states because of the implications it might have for the free movement of ships through the archipelago and access to fishing grounds in the waters now claimed by Indonesia. And, as headlines from around the world quickly demonstrated, it outraged the Western maritime powers. Fearing that it had the potential to restrict the mobility of their naval forces and disrupt international shipping, they condemned it as a gross violation of the freedom of the seas enshrined in international law and announced that they would disregard it. The Indonesian government appeared to be in no position to overcome a challenge to its claim. It was embroiled in serious and deep-seated domestic political turmoil and its navy was far too weak to enforce any conditions the government might place on foreign warships passing through the archipelago. And yet in 1960 it enacted the declaration of the Djuanda cabinet, later to be known as the Djuanda Declaration, into national legislation. xx

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Eventually, in 1982, Indonesia gained international recognition for its claim when the United Nations Convention on the Law of the Sea formally recognized the existence of a new category of states known as archipelagic states and declared that these states had sovereignty over their “archipelagic waters”. Why did the Indonesian government issue the declaration of 13 December 1957? How, in the face of a lack of support from neighbouring states and the concentrated and seemingly implacable opposition of the Western maritime powers, did the government finally gain international recognition of its claim? How, in short, did Indonesia become an archipelagic state? In a crucially important respect, jurisdiction over maritime space differs from that over land territory. In theory a state’s jurisdiction over its land territory is uniform; the state exercises sovereignty over all of its land territory regardless of how far that territory is from its administrative capital. In sharp contrast, the nature of a state’s jurisdiction over its maritime space can vary markedly from one part of the sea to another depending on its relationship to the state’s land territory. Thus, under the Law of the Sea Convention a state has the same degree of sovereignty over its “internal waters”—river mouths, bays, and other areas partially enclosed by land—as it does over its land territory. In particular, foreign ships cannot enter these waters without the permission of the coastal state. A state also has sovereignty over its “territorial sea”—extending up to 12 miles out from baselines drawn in accordance with the convention—but foreign ships have the right of “innocent passage” through these waters, meaning that they can pass through them without (at least according to the most widely accepted understanding of the convention) providing notification or obtaining permission as long as they conform to various conditions set out in the convention. In its “exclusive economic zone”, which extends up to 200 miles out from the same baselines used to measure the territorial sea, a state exercises “sovereign rights” over living and non-living resources in and under the waters included in this zone, but (“subject to the provisions of the Convention”) foreign ships and aircraft enjoy the same freedom of navigation and overflight here as they do on the high seas. States with continental shelves may also claim rights to the seabed extending beyond their exclusive economic zones, but they do not have exclusive rights to fish and other resources in the waters above the seabed in those areas. Thus, there are gradations of jurisdiction. But what of archipelagic waters? The convention recognizes archipelagic states as having sovereignty over their archipelagic waters, but just what was the nature of the sovereignty that Indonesia gained over the waters between its islands? Was it the “absolute sovereignty” that Djuanda had asserted in 1957 or was it a lesser form of jurisdiction? Much of the story of how Indonesia became an archipelagic state concerns the resolution of deep conflicts about what sort of jurisdiction, if any, Indonesia and other countries made up of islands might enjoy over the waters between those islands.

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There are already numerous accounts of how Indonesia became an archipelagic state. Foremost among these are the accounts written by Indonesian diplomats who were involved in Indonesia’s archipelagic campaign, particularly Mochtar Kusumaatmadja, Hasjim Djalal, and Munadjat Danusaputro.1 In addition, Dino Patti Djalal has written an account from a geopolitical perspective,2 while numerous authorities on the law of the sea have written more generally about the origins of the idea of an archipelagic state and how the archipelagic concept was finally incorporated into the convention. While we make extensive use of all these writings, our book differs from them in several ways. We try to bring out more clearly the multidimensional nature of Indonesia’s archipelagic campaign, demonstrate the connections between the different strands of this campaign, and show more clearly how the outcome of the campaign was closely tied to broader developments at the three United Nations conferences on the law of the sea, particularly UNCLOS III. We aim to give a better sense of the internal dynamics of the group of Indonesians working for recognition and of the political context in which they worked. We endeavour to provide much more detail on the most important negotiations between Indonesian officials and their counterparts in other states, particularly the US. Most important, we hope to bring out more clearly just how uncertain the outcome of the government’s efforts to obtain international recognition of the archipelagic concept was for a very long time. Calling on the term used to describe Indonesia’s fight to gain independence from the Netherlands, Indonesia’s archipelagic campaigners frequently referred to their work as a “struggle [perjuangan]”.3 Our research indicates, indeed, that that “struggle” was even more difficult than they have portrayed it in their writings. We hasten to add that even if we succeed in all our aims we do not see our book as superseding existing accounts. Aside from being the most important primary sources for any history of Indonesia’s archipelagic campaign the books and articles written by those officials who were part of the “struggle” retain an immediacy and sense of purpose that can only be conveyed by those who were in the thick of events. Dino Patti Djalal’s account goes further than ours in investigating how the interests of the military and the desire to exploit marine resources contributed to the development of the archipelagic concept. And the work of the law of the sea experts, many of whom participated in the various UN conferences on the law of the sea, will guide future studies of how Indonesia became an archipelagic state just as it guided ours. Our main claim is simply that our account reveals the complexities, interconnections, and twists and turns of Indonesia’s archipelagic campaign far more than the existing literature does. Two eminent political geographers have made the point that over the course of UNCLOS III “support for special rules for the delimitation of maritime zones of archipelagic states became irresistible”.4 The incorporation into the convention of articles dealing with archipelagic states demonstrates the

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validity of this observation. But, to return to our main question, how did the Indonesians and their archipelagic partners overcome the fierce resistance they initially faced? For that matter, did they in fact overcome it entirely or did they have to abandon some of their original objectives? Was there any point before 1982 when it was really possible to say that victory had been achieved? These are questions we hope we can answer in a way that previous accounts have not. From a purely practical point of view the easiest way to organize this book would have been to address a number of themes or topics one by one. Among obvious themes are the development of legislation in Indonesia, negotiations with neighbouring states, conflicts over the passage of foreign warships through the seas and straits lying between Indonesia’s islands, the particular problem of the passage of warships and tankers through the Malacca Strait, efforts by Indonesia and its fellow archipelagic states to agree on a common stand, the ups and downs of discussions with the United States, and the work of the Indonesian delegation at UNCLOS III. However, since one of our main purposes is to show how developments in one sphere affected, and were affected by, those taking place simultaneously in the others, and since another is to highlight the uncertainty that enveloped the campaign, our answer to the question of how Indonesia became an archipelagic state takes the form of a narrative. As storytellers we have shaped our narrative according to our understanding of the tempo at which events took place, but otherwise we have tried to trace events, as a historian of another sequence of events whose outcome was anything but certain puts it, “forward, as [they] unfolded, with sideways and…backward steps along the way and with the future always unknown”.5 The narrative we present in the following chapters concentrates on the period from the 1950s when Indonesians first considered the possibility of bringing the waters between Indonesia’s islands under some form of national jurisdiction to the signing of the convention at Montego Bay in December 1982. First, however, we describe the formation of the Netherlands Indies, the extinguishment of the sovereign rights many indigenous rulers had enjoyed over the waters adjacent to their land territories, the triumph of the 3-mile limit, and, of special importance to the whole story, the invention of the idea of Indonesia. This background will, we hope, make it much easier to understand both how radical the declaration of December 1957 was and what impelled the government to make it. The book ends with some reflections on Indonesia’s archipelagic campaign and a brief account of events since the signing of the convention. In our attempt to explain how Indonesia became an archipelagic state we have drawn on newspaper articles, official reports, United Nations records, and interviews with diplomats and other officials who played important parts in the story we tell as well as on the historical accounts we have already mentioned. We have, in addition, made extensive use of a variety of archives. We began our

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research with high hopes of consulting Indonesian archival sources. However, our search in the National Archives of the Republic of Indonesia, impeded as it was by the official unhelpfulness and obfuscation for which that institution is notorious, uncovered nothing except for two unimportant documents, while our repeated efforts to gain access to the reports of Indonesian delegations to the three UN conferences on the law of the sea that we believed were held by the Indonesian Ministry of Foreign Affairs came to nothing. We have therefore had to rely more heavily than we had planned on the archives of other countries, specifically those of Australia, the United Kingdom, the United States, and the Netherlands. These archives are of course most valuable for ascertaining the views of the governments of these countries, all of which initially opposed Indonesia’s archipelagic claim. Nevertheless, used cautiously and in conjunction with the Indonesian sources we do have, they have proved immensely useful for gaining an Indonesian perspective on the government’s archipelagic claim, its subsequent conflicts with the maritime powers, and its long campaign to gain international recognition of the archipelagic concept. They have even provided us with a few documents of the sort we had hoped to find in Indonesian archives. Also compensating for our failure to gain useful access to Indonesian archives have been the reports that the representative to UNCLOS III of one of Indonesia’s fellow archipelagic claimants, Fiji, wrote for his government. As well as revealing much about the Indonesians’ relations with other archipelagic claimants these reports allow us to show the crucial part Fiji’s representative himself played in gaining recognition of the archipelagic concept. Thus, despite our near total lack of Indonesian archival records we have been able to make use of an abundance of sources to construct our narrative of how Indonesia became an archipelagic state. One difficulty some readers may have, as we did when we began our research, concerns the technical nature of much of the subject matter. In the international sphere the “struggle” was mainly a battle over the wording of treaties, conventions, and other agreements with other states. To Indonesian officials it mattered greatly whether waters in the South China Sea were described as “separating” or “lying between” West and East Malaysia, whether the Malacca Strait was an “international strait” or a “strait used for international navigation”, and whether foreign ships had the “freedom” or the “right” of navigation through the waters of an archipelagic state. Likewise, it made a world of difference precisely what percentage of the straight baselines that an archipelagic state could draw around an archipelago could be longer than a particular length and, in turn, what that particular length could be. We mention this not to plead for readers’ indulgence but merely to inform them that we will make every effort to explain exactly why these seemingly arcane questions mattered so deeply that the outcome of negotiations, and on occasion relations between Indonesia and other states, depended on their satisfactory resolution.

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Finally, the “mile” referred to in the text is in all cases the nautical mile, equal to one-sixtieth of a degree of latitude, defined by the International Hydrographic Organization in 1929 as having the value of 1852 metres. October 2014

Acknowledgements Acknowledgements

During the decade that it took us to plan, research, and write this book we were helped by a veritable archipelago of people and institutions. We thank first of all the Australian Research Council for the generous grant that enabled us to undertake this project and Griffith University and the University of Queensland for supporting our research. We are grateful to the Nationaal Archief in The Hague, the National Archives of Australia, the National Archives and Records Administration in College Park, and the University of Virginia School of Law Library’s Special Collections for the opportunity to consult the archival riches preserved by those institutions, to the National Archives of the United Kingdom, the Dag Hammarskjöld Library of the United Nations, the Mochtar Kusumaatmadja Library at Padjadjaran University, and the Library of Congress for supplying us with copies of materials in their collections, and to the Koninklijk Instituut voor Taal-, Land- en Volkenkunde, the National Library of Australia (the repository of most of the Indonesian books we consulted), the Centre for Strategic and International Studies in Jakarta, the University of Queensland Library, and the Griffith University Library, particularly its magnificent interlibrary loan service. Among the many people who helped us with sources and contacts, offered suggestions, answered our questions, commented on our work, and provided practical help at various stages of this project are Etty Agoes, Ken Alderton, Martin Andrew, Andi Arsana, Sam Bateman, Mark Beeson, Frank C. Bennett, Jr., Tom van den Berge, Colin Brown, William Burke, Henry Burmester, Greg Chaikin, Vincent Cogliati-Bantz, Helen Creese, Robert Cribb, Heidi Dahles, Pieter Drooglever, Jim Fox, Greg Gilbert, Martin Griffiths, the late John Gullick, Michael Heazle, J. den Hollander, Nicole Jenne, K.J.P.F.M. Jeurgens, John Kane, Kate and Charlie of Sunnybank Stationery, Stuart Kaye, Nazery Khalid, Kwa Chong Guan, Leong Liew, Thomas Lindblad, Tim Lindsey, Carolin Liss, Mona Lohanda, Thomas Mahnken, Jack McCaffrie, Robert McNamara, George Miller, Ashutosh Misra, Steve Mullins, Greta xxvi

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Nabbs-Keller, Andrew O’Neil, Tri Patmasari, Sierk Plantinga, Greg Poulgrain, Craig Reynolds, Merle Ricklefs, David Saunders, Jason Sharman, Jim Sneddon, Heather Sutherland, Eric Tagliacozzo, Gerke Teitler, Craig Thorburn, Toh Boon Kwan, Bill Tow, Carl Trocki, Twang Peck Yang, Frances and John Vanderbeck, Jim Warren, Pat Weller, and Michael Wesley. John Butcher would particularly like to thank Viv Forbes for so patiently introducing him to the law of the sea during the early stages of this research and his old friend Bruce Cruikshank for his encouragement and suggestions throughout the project. Both authors are eternally grateful to Thee Kian Wie not only for the extraordinary lengths to which he went to help us obtain a permit to conduct research in Indonesia but also for the sheer pleasure of his friendship; we deeply regret that he did not live to see the book that he did so much to help bring into being. We thank too Tjoe Thee for her part in assisting our research and for many happy memories in Jakarta. We are extremely grateful to the Indonesian Institute of Sciences (LIPI) for sponsoring our application for a research permit in 2008 and the State Ministry of Research and Technology (RISTEK) for approving our application. During the course of our research we were privileged to interview many diplomats, officials, naval officers, and scholars who participated in the story we tell or had a direct interest in the issues we discuss. Among them are (roughly in the order we first spoke with them) B.J. Habibie, Hasjim Djalal, Robert Plath, Nugroho Wisnumurti, Juwono Sudarsono, the late Sudomo, Hassan Kartadjoemena, Dewi Fortuna Anwar, Ikrar Nusa Bhakti, the late Adrian Lapian, Tommy Koh, John Norton Moore, Satya Nandan, Myron Nordquist, and Gerard Brennan. All gave generously of their time, knowledge, and experience. We particularly thank Hasjim Djalal for talking to us on six different occasions, answering dozens of follow-up questions, and taking us to meet Mochtar Kusumaatmadja. Nugroho Wisnumurti was also immensely helpful in answering our follow-up questions. We thank too Adi Sumardiman for explaining to us in a series of email messages the story behind the preparation of the map accompanying Law No.4, Sarwono Kusumaatmadja for providing information about his elder brother, and Jakob Tobing for explaining the work of PAH I. To all these people we owe an enormous debt. We are grateful for the services of the two talented individuals who prepared the maps and diagrams in this book. Rachel Atanacio prepared all except two of these figures. We marvel at the way she translated our sketches and often convoluted instructions into such neat illustrations. The two other figures (2.2 and 9.2) were prepared by I Made Andi Arsana. These maps are based on his own meticulous analysis of a variety of cartographic resources. We thank too Hasjim Djalal, Nugroho Wisnumurti, and two anonymous readers for NUS Press for taking the time and trouble to read our manuscript. The text is much the better for their comments.

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Finally, we thank Lorena Butcher and Elizabeth Elson for their patience, encouragement, and love as we undertook the at times tortuous (torturous?) journey of completing what we promise them is the final book of our academic careers. JGB and REE, Brisbane and Mons

CHAPTER 1

The “sea territory” of the Netherlands Indies Indies Netherlands the of territory” “sea The

Davidson’s fineness was real enough to alter the course of the steamer he commanded. Instead of passing to the south of Samburan, he made it his practice to take the passage along the north shore, within about a mile of the wharf. “He can see us if he likes to see us,” remarked Davidson [referring to the Swedish mine operator living on the island]. Then he had an after-thought: “I say! I hope he won’t think I am intruding, eh?” We assured him on the point of correct behaviour. The sea is open to all. — Joseph Conrad, Victory: An Island Tale1 Drawing on his experience as a sailor in the “Eastern Seas” in the 1880s, Conrad wrote about a time when, at least for Europeans, the sea was indeed open to all. The time was long past when the Spanish and Portuguese had divided up the world’s oceans into spheres of authority and the Portuguese had demanded that ships sailing in the Indian Ocean carry passes issued by the Portuguese. So was the time long past when the Dutch East India Company had banned non-company ships from sailing to the Spice Islands. So, too, was the time long past when Charles I had claimed absolute sovereignty over the vast “Sea of England”. When Conrad sailed in the seas east of Singapore, the principle dominating European thinking about the world’s oceans was the idea of the freedom of the seas. According to this idea, most famously enunciated by Hugo Grotius in Mare Liberum in 1609 when the Dutch were challenging the Portuguese monopoly of the spice trade (and had yet to establish their own monopoly), the sea was “the common property of all”. That was because, Grotius explained, “it is so limitless that it cannot become the possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries”. Nature, he insisted, calling on ancient authorities, “not only allows but enjoins its common use”.2 The supremacy of the principle of the freedom of the seas when Conrad sailed the Eastern Seas was almost entirely the result of the emergence of Great 1

2

SOVEREIGNTY AND THE SEA

Britain as the world’s preeminent industrial and maritime power following the Napoleonic wars. During the 1800s the British navy ruled the waves and over the course of the century it supported the expansion of the British empire and the imposition of unequal treaties on China, Siam, and several other countries. At the same time British shipping companies, making use of great advances in the design of steamships, an abundance of capital, and the availability of cheap coal, came to carry much of the world’s seaborne trade. The British looked to the rest of the world as a source of raw materials and as a market for their manufactured products. Because of their domination of the world’s shipping the British had little to fear from foreign competitors carrying goods to Britain and much to gain from obtaining as much access as possible to foreign ports. The British government therefore moved both to make British ports more accessible to foreign ships and to put pressure on other governments to make their ports available to British ships with as few impositions as possible. During the 1800s the British government repealed the Navigation Acts that had long protected British shipping interests, established a number of free ports in its colonies, used its diplomatic power to persuade other governments to establish free ports, and, most important, insisted on the inherent right of the ships of all countries to sail the world’s oceans unhindered, subject only to the power given to all states to arrest and punish pirates. By the time Conrad sailed the Eastern Seas the freedom of navigation in the world’s oceans had become, in British thinking, a fundamental part of international law. Ascendant though the idea of the freedom of the seas was at this time, there was also universal acceptance among the states of Europe that because of the inherent right states had to protect themselves from external threats coastal states had the right to claim jurisdiction over the waters immediately adjacent to their shores.3 There was, at the same time, near universal acceptance that this jurisdiction was not absolute. In particular, it was accepted that coastal states had an obligation to grant foreign ships the right of innocent passage through the coastal waters over which they claimed jurisdiction, meaning that a ship could pass through these waters if it did so expeditiously and without in any way threatening the security of the coastal state. Otherwise, however, there was no consensus about either the nature of the state’s jurisdiction over the waters immediately adjacent to its coast or the closely related question of just how far out to sea this jurisdiction reached. Many states including France and Spain took the view that a state had the right to enforce immigration, customs, quarantine, fisheries, and other specific regulations in these waters but had no “plenary” jurisdiction over them. It was common practice for these states to exercise, at different distances from their coastlines, several different forms of jurisdiction over their coastal waters simultaneously. France, for example, reserved the fisheries within 3 miles of the coast for its citizens and maintained a customs zone of 2 myrimetres (about 11 miles).4 Following the principle

THE “SEA TERRITORY” OF THE NETHERLANDS INDIES

3

enunciated by Cornelius van Bynkershoek in 1702—and still accepted by many states in the late 1800s—that “the power of the land properly ends where the force of arms ends”,5 France also claimed a neutrality zone that extended out as far as the range of cannon placed along the shore. In contrast, British, US, and Scandinavian practice as it had developed from the late 1700s was premised on the principle that the waters immediately adjacent to the coast were an extension of the state’s sovereign territory and that except for the obligation to allow innocent passage the state enjoyed in these waters, often referred to as territorial waters or the territorial sea, all the prerogatives it had on its land territory. Rather than claiming different jurisdictions out to different distances from their shores these states had come over the course of the 1800s to exercise a plenary jurisdiction out to a single distance. Most Scandinavian countries had long exercised such a jurisdiction out to the distance of one Scandinavian league, or 4 miles. The United States had generally observed a limit of one English league, or 3 miles, ever since Secretary of State Thomas Jefferson declared in 1793 a 3-mile neutrality zone in order to help prevent the US from being drawn into the war between Britain and France.6 And, codifying its practice since the early 1800s, the British government assumed in the Territorial Waters Jurisdiction Act of 1878 the power to enforce its criminal law in its territorial waters out to the distance of 3 miles. This act applied not only to Great Britain but also to its colonies, protectorates, and dominions. As the dominant naval and commercial power, as well as the operator of fishing fleets that ranged far and wide, Great Britain had an overwhelming interest in as widespread adoption as possible of 3 miles rather than some greater distance as the limit of a state’s jurisdiction. It therefore protested strongly against what it regarded as excessive claims to maritime jurisdiction by other states. When, for example, Spanish authorities claimed in 1874 the right to intercept and board all merchant ships passing within 7.5 miles of the coast, Great Britain protested “that the law of nations did not permit a right of search over foreign ships on the high seas ‘beyond the well-defined limit of three miles’”.7 But even the British government did not commit itself in the Territorial Waters Jurisdiction Act to observing a limit of 3 miles in relation to every problem that might arise in the future. Moreover, the government studiously avoided going so far as to state in that act that the distance of 3 miles actually marked the outer limit of Great Britain’s territory. “The territorial limit”, Lord Salisbury declared in 1895, “depended on the distance [about 15 miles at the time] to which a cannon-shot could go”.8 Thus, while the freedom of navigation on the high seas reigned supreme as a principle, there remained great confusion about exactly where the boundary between the high seas and the waters coming under the jurisdiction of individual states lay. One of the many places where this confusion generated conflict was the Netherlands Indies.

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THE NETHERLANDS INDIES By the time Conrad sailed in the Eastern Seas the dominant political powers in this part of the world were the Dutch in the Netherlands Indies, the British on the Malay Peninsula, and the Spanish in the Philippines. By far the biggest of these colonial realms—and the one central to this story—was the Netherlands Indies, which by the 1880s included most of the land from Sumatra to western New Guinea. The formation of this massive territory had been a haphazard process taking place over nearly three centuries. In some cases the Dutch had acquired territory by brute force, in others they had supported one ruler or another in a local dispute and then exacted certain concessions—including rights to large swathes of land—in return, and in still others they had relied on the threat of force or the offer of protection. The high politics of Europe had also played a part. Under the terms of the Anglo-Dutch treaty of 1824 the Dutch handed over Malacca on the Malay Peninsula to the British in exchange for the British possession of Bencoolen on the west coast of Sumatra. The result of this complex process, which had very nearly taken an altogether different direction when the British seized Java in 1811 before handing it back to the Dutch in 1816, was a constitutional patchwork. Some areas, including almost all of Java, were directly ruled by Dutch officials, while other areas known as self-governing territories (Zelfbesturende Landschappen)—of which most were located along the east coast of Sumatra, in western and eastern Borneo, in the Lesser Sunda Islands to the east of Bali, and in the northern Moluccas—had formally recognized Dutch suzerainty but retained at least nominal sovereignty as far as their internal affairs were concerned. Even in the 1880s, it must be emphasized, the Dutch had very little knowledge of many of the areas within their realm. The government’s main focus was on Java, the most heavily populated island and the generator of much of the wealth of the Indies as well as the headquarters of the government itself. Crucial to the formation of the Dutch colonial empire was the understanding that the Netherlands government had reached with the British. The British government much preferred to have the Dutch rather than a major power such as France or Germany colonizing the island world. It also saw the Netherlands as a useful counterweight to France and Germany. But it was also determined that British ships should be free to sail unhindered between the Indian and Pacific oceans and about the seas lying between the islands. In 1782 the British secretary of state observed that up to that time the Dutch had “kept themselves Masters of the Navigation of the Eastern Seas” and argued that in any settlement of the war then underway between Great Britain and the Netherlands “it will…be necessary that the liberty of navigating those Seas should be asked for, and granted”.9 Following their victory over the Dutch, the British gained that liberty in the Anglo-Dutch treaty of 1784. The government was also determined that British merchants should be able to conduct trade in the Eastern Seas with few restrictions and that the

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5

Dutch do nothing to prevent indigenous traders from visiting British ports in the region. The government largely achieved these aims in the Anglo-Dutch treaty of 1824, negotiated soon after Britain’s victory in the Napoleonic wars and after the British had established Singapore as a free port. The result of the two treaties was an understanding that the Netherlands would be free to bring more and more areas within the Dutch sphere as long as the Dutch did not impinge on the freedom of navigation in any way that affected British strategic or commercial interests or violate the rights with regard to trade that the British had won in the 1824 treaty. On several occasions Dutch actions in this part of the world, particularly in and around Sumatra, severely strained this understanding but Dutch diplomats always managed to prevent it from breaking down completely. The expansion of the Netherlands Indies was also underpinned by Dutch naval power. Dutch naval forces were greatly inferior to those of the British, and in the late 1800s the gap between the two navies was increasing. But because of the understanding the Dutch had with the British what mattered was the power of Dutch naval forces relative to those of the indigenous peoples of the region. Even in this respect there were limitations to Dutch power. Most notably, the Dutch found it difficult for many years to mount an effective blockade against Aceh, the state that resisted incorporation into the Netherlands Indies most fiercely. But in the late 1800s no indigenous state was in a position to launch an open attack on Dutch ships. The Indies government was therefore free to move its warships about the Eastern Seas as it wished, carrying soldiers, weapons, and supplies wherever they were needed. The wealth of the Netherlands Indies came almost entirely from coffee, sugar, tin, tobacco, and other commodities grown on or dug out of the land, but the opportunity to extract that wealth was provided in part by the relative power the Dutch exercised at sea. The waters that Dutch ships moved through as they sailed from island to island were, leaving aside those immediately adjacent to certain coasts, part of the high seas, under the jurisdiction of no state, but the Netherlands Indies government had a vital interest in maintaining what it regarded as law and order in these waters. Up until the mid 1800s its greatest threat in this respect came from the sea raiders of the Sulu Archipelago who scoured the coasts of the island world in their fast boats, capturing people and taking them back to Sulu, where the sultan and chiefs put them to work gathering marine and jungle products for the China market.10 When Alfred Russel Wallace visited the Aru Islands to collect birds of paradise and other natural wonders in 1857 the port of Dobo, the hub of the trade in mother of pearl and other products in the far eastern part of the Dutch realm, came to a standstill when “Sooloo pirates” began “plundering” nearby.11 The activities of these raiders disrupted trade, held back the development of the fishing industry, and undermined Dutch authority. Between 1850 and the 1870s, however, Dutch, British, and Spanish gunboats combined to inflict a series of decisive defeats on the raiders both at sea and at their bases in Sulu. These campaigns did not entirely

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suppress raiding but by the 1880s the seas were, from a colonial perspective, far more secure than they had been just a few years earlier. The Dutch colonial government also had a vital interest in maintaining what today would be called sea lines of communication. Unlike most other large states that were taking shape at this time the Netherlands Indies was not made up of a single block of land but instead of many hundreds of pieces of territory separated from one another by water. But steamships helped the government to bring some degree of administrative and economic cohesion to its rapidly expanding domain just as railroads, steamboats, and canals did as the United States expanded westward during the 1800s. With state-building firmly in mind it strongly backed the formation of the Koninklijke Paketvaart-Maatschappij (Royal Packet Navigation Company (KPM)) in 1888. By 1891 regular services of the KPM linked all the major ports and many outposts such as Dobo together into one vast shipping network.12 Because of the constant danger posed to ships by the myriad of islets, sandbars, rocks, and coral reefs found in these waters the government also took steps to improve the safety of navigation. By the 1880s Dutch hydrographers had begun the enormous task of mapping these waters containing thousands of islands, rocks, and coral reefs, while the government was rapidly expanding its network of lighthouses.13 The government took little interest in the purely scientific study of the sea. M.-P. Bleeker’s nine-volume Atlas Ichthyologique des Indes Orientales Néerlandaises was the work of an army surgeon who could collect fish only when his official duties allowed.14 And the Germans, French, and particularly the British rather than the Dutch took the lead in oceanographic research in these waters. In 1875, for example, HMS Challenger discovered that the Banda Sea plunges to depths over 5000 metres and that the temperature at this depth is only slightly above freezing point.15 For the government of the Netherlands Indies the more pressing tasks as far as the sea was concerned were to expand shipping, ensure the safety of navigation, and clamp down on activities that threatened its fundamental interests. Up until the 1880s the government of the Netherlands Indies made little effort to define the nature and extent of its jurisdiction over the seas adjacent to its land territory. A neutrality declaration issued during the Franco-Prussian War stipulated that whenever ships of the two belligerents happened to be “in the territorial waters of the Netherlands Indies possessions” at least 24 hours had to elapse between the departure of a ship belonging to one of the warring parties and the departure of one belonging to the other but did not specify the width of these waters.16 Regulations about policing at sea that it issued in 1882 applied out to 3 miles from the coast, but this time it did not use the term “territorial waters”.17 By far the greatest concern the government had regarding its jurisdiction in waters adjacent to its land territory related to the smuggling of opium into Java, where opium farms, one of the government’s main sources of revenue, sold prepared opium to millions of customers in rural areas at extremely high prices. In this case too the government issued regulations that made no mention of “territorial waters” but instead gave

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7

marine patrols specific powers that applied out to a certain distance from the coast. A regulation issued in 1879 forbade all vessels (except for European-rigged ships destined for Batavia, Semarang, Surabaya, or Padang) carrying opium from coming within 3 miles of the coasts of Java and Madura or the west coast of Sumatra.18 “With general disregard for the niceties of international law”, Rush recounts, the official charged with enforcing this regulation “forced opium-laden craft from international waters into the three-mile perimeter within which he was authorized to confiscate contraband cargo and to make arrests”, but the Indies courts refused to convict the operators of vessels detained in this way, no matter how much evidence there was that they had planned to smuggle opium into Java.19 In 1883 the government tried to get around this legal obstacle by extending its power to inspect and seize vessels out to 6 miles from the coast, but because the regulation applied only to vessels registered in the Netherlands Indies the smugglers began shipping opium on vessels registered elsewhere. The government in The Hague had considered the possibility of applying the regulation to all vessels but decided not to do this because of fear of how foreign powers might react. It also considered a proposal to issue a regulation that made no mention of any particular jurisdictional limit, thus giving would-be smugglers no idea about how near they could come to the coast without risking arrest, but it rejected this proposal as well, partly because it did not want to give the Netherlands Indies government powers that the home government had not given itself and partly because it feared officials in the Indies might abuse these powers.20 The upshot of all these policy discussions was that in the 1880s the Indies government had regulations that gave it jurisdiction in waters adjacent to certain stretches of its coastline as far as a few specific issues were concerned but had not defined its territorial waters. There was no compelling reason to do any more. Most obviously, the Netherlands Indies faced no external threats. The great power in this part of the world was of course Great Britain, which had colonies and protectorates from Hong Kong to India and had a strategic interest in the waterways between the Pacific and Indian oceans but, as we have just seen, the Netherlands had been expanding its reach over more and more territory with at least the acquiescence of Great Britain. At the same time any step to define the territorial waters of the Netherlands Indies would have been irrelevant to the government’s campaign to stamp out the wide range of activities it regarded as piracy, since international law gave the government the right to pursue pirates even if they were on the high seas. Similarly, a regulation concerning the suppression of the slave trade issued in 1877 gave the government the power to intercept vessels flying either no flag or the flag of a native state anywhere on the high seas as well as in “the waters of the Netherlands Indies”.21 Moreover, unlike in Europe, problems caused by foreign fishing vessels provided no motivation for clearly defining and rigorously enforcing the government’s jurisdiction at sea.22 Up to the 1880s there were no such fishing vessels to worry about. In any case, fish, the main source of animal protein for

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much of the population, were abundant, being caught in large quantities both in fixed traps placed close to the shore and by vessels venturing just a short distance out to sea. Even valuable marine animals such as sea cucumbers and pearl oysters, which were most abundant in the Moluccas, appeared extremely plentiful despite having long been harvested by the people of this area. In short, there appeared to be no need for the government to do any more to define its jurisdiction over the waters adjacent to its land than it had already done. It certainly had no particular reason to define the territorial waters of the Indies. On the contrary, it had good reason not to commit itself to a particular width, since there was no consensus among states and scholars about the standing of the 3-mile limit or even on whether all states should observe the same limit. Soon, however, the government would be forced to give these matters much more attention.

THE PEARLING ORDINANCES In the late 1880s the government in Batavia was gradually bringing a degree of administrative cohesion to the bits and pieces that made up the Netherlands Indies but it still had by no means full control over this unwieldy and rapidly expanding realm. The government had this problem in many of the self-governing territories that made up about half of the area of the Netherlands Indies outside Java. It also faced them in some other areas outside Java that in strictly legal terms were directly ruled by the Netherlands but in practice were largely governed by local chiefs and village heads under the very loose supervision of Dutch officials. The danger for the government was that foreign adventurers could undermine its tenuous hold in these parts of the Indies either by allying with or clashing with indigenous authorities there.23 In the late 1800s exactly this sort of challenge came from Australians roaming the seas north of their homeland in search of pearl-shell, particularly the shell of the mother-of-pearl oyster, Pinctada maxima. Their goal was to profit from the high prices for pearl-shell, most of which was made into buttons, by collecting as much as they could as quickly as possible. Their use of diving suits gave them an enormous technological advantage over indigenous divers, who collected shells as they long had without any equipment; the Australian divers could collect shells in deeper water and of course stay underwater for much longer. Attracted in part by Wallace’s description in The Malay Archipelago of the trade in pearl-shell at Dobo in the Aru Islands, Australian pearl-shellers had begun venturing into the Moluccas and along the west coast of New Guinea in search of oyster beds as early as the 1870s.24 As they did so they often clashed with chiefs and villagers who claimed ownership of these beds. For many years these spasmodic forays into the Indies were little more than a nuisance to the government in distant Batavia, but it took more notice in 1886 when the Resident of Ambon, D. Heijting, whose administrative responsibilities included the Aru Islands, reported that an

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Australian vessel, the Coral Sea, had collected shell off the northeast coast of the Aru Islands and had threatened local people who had objected. In Heijting’s view the government should consider prohibiting all diving for pearl-shell by outsiders. He reported that the people living along the eastern side of the Aru Islands, the “Back Shore” (Achterwal), where the richest pearl banks were found, regarded the pearl banks lying close to these islands “as their property”; each village could state the boundary between its property and that of neighbouring villages and villagers were prepared to go to war if outsiders tried to dive within what they regarded as their territory. These territories extended far out into the sea, since, according to Heijting, “the sea to about two and a half miles and in some places still further” from the coast was very shallow, making it easy for the Aru divers to collect shell.25 At this time the government in Batavia simply informed Heijting that it would take no action as long as the pearl-shellers did not come closer than 3 miles to the coast.26 Soon, however, the problem became far more pressing as more Australian vessels, now working in large, well-coordinated fleets, stepped up their activities along the Back Shore. In March 1893 a local raja complained to the new Resident of Ambon, G.W.W.C. Baron van Hoëvell, that a fleet belonging to the Pearling and Trading Company had been “found inside the territorial limit” where it had “plundered the pearl banks and taken large as well as small shells”.27 During a meeting the next day the captain of this fleet told Van Hoëvell that he had been operating with the raja’s permission. The raja replied that he now wanted the divers to stop collecting shell, as they were bringing up everything they found and destroying the pearl banks. At this point, according to the captain’s log, Van Hoëvell “prohibited us working at Aru & protested against our working outside the 3 mile limit”.28 The captain answered that he accepted the “international limit of three miles measured from the low water line” but insisted that beyond that limit the fleet was free to operate as it wished. The Resident responded that there was in fact some doubt about the limit in the case of the Aru Islands, “because since ancient times the pearl banks of the Aru Islands—including those lying more than three miles from the coast—have been communally owned by the people”. He also suggested that while several states observed the 3-mile limit it was hardly fixed in international law. Van Hoëvell ended the meeting by warning the captain that while it would be up to their governments to resolve the broader questions of international law the “fierce people” of the Back Shore would no doubt take up arms to prevent any “high-handed” exploitation of their banks. Van Hoëvell expanded on his views regarding the 3-mile limit in his report to the governor-general about this incident. Whatever the status of the 3-mile limit in international law, he argued, it “cannot infringe on already established private rights [private rechten]” such as the villages along the Back Shore had over the pearl banks. Moreover, he added, there was a legal (juridisch) difference between catching fish in the open sea and diving for shells that were attached to particular places. He recommended that the government in Batavia ask the home government to lodge

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a protest with the British government regarding the “exploitation and plundering” by Australian pearl divers of the pearl banks, including those beyond 3 miles, that had belonged to the local people “since ancient times”. He also recommended that the government send a warship to patrol the area during the next pearling season at the end of the year. The government was extremely wary of Van Hoëvell’s views regarding the 3-mile limit. Officials in Batavia and The Hague were of course fully aware that there was no international agreement regarding the breadth of a state’s territorial waters. They knew too that the British colonial authorities in Ceylon prohibited foreigners from working the pearl banks in the Gulf of Mannar, some of which were much further than 3 miles from the nearest land. But they were also aware of the difficulties the government would face if it tried to extend its jurisdiction over the pearl banks any further than 3 miles from the coast. The government’s situation was neatly summarized by the commander of the Netherlands Indies navy, Vice Admiral J.A. Roëll. “There is no international law that allows claims to sea products further out than three miles,” he observed, “but neither is there one against such claims. Everything is regulated by use and the power of the state making the claim. …[S]o-called international law rests on shaky ground and is established in proportion to the interests of the strongest nation.” The implication was that, however inconsistent Great Britain might be in its own practices, the Netherlands would find it difficult to do anything the British government disapproved of. Roëll recommended that the government not challenge the 3-mile limit but instead undertake a hydrographic survey of the Back Shore to find out exactly where that limit was. Specifically, the survey should look for any reefs close to the coast that fell dry at low tide, for if such reefs could be regarded as extensions of the land, as was already the practice in the North Sea, then they could be used as the starting point for measuring the distance of 3 miles.29 Thus, for example, if a reef lying 2 miles from the coast was exposed at low tide then the government’s jurisdiction would reach all the way out to 5 miles from the coast. The government quickly latched onto Roëll’s suggestion. In June tensions between Dutch authorities and the Australians reached boiling point when Van Hoëvell discovered that the Pearling and Trading Company had not only ignored his “summons [sommatie]” to leave Aru waters but also been collecting shell within 3 miles of the coast. The Resident summoned the sub-manager of the Pearling and Trading Company, Raymond O’Kelly, to Dobo, where O’Kelly lost his temper and insulted the Netherlands Indies government (“Dutch law is a dog’s law”).30 Shortly after this episode the government in Batavia sent a warship to the Aru Islands, while the government in The Hague lodged a protest note in London. At Roëll’s suggestion the government also decided to issue an ordinance giving itself the authority it needed in the waters in question. Ordinance No.261 of October 1893 imposed penalties on foreign vessels collecting shell within “the territorial waters of the

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Netherlands Indies” unless they had a permit issued by the government.31 The ordinance avoided any mention to the actual width of these waters but the government let it be known that they would not enforce the ordinance beyond 3 miles. Van Hoëvell himself later told a naval captain sent by the British Admiralty to investigate the dispute that “of course outside the 3 mile limit it was not in my power to object”.32 In this way the Dutch authorities sidestepped any official commitment to a limit of 3 miles but still managed to allay the concerns of the British government. Australian pearl-shellers were outraged by a provision in the ordinance that any vessel found to be carrying shell within “the territorial waters of the Netherlands Indies” would be regarded as having collected it illegally unless the crew could prove otherwise, since it meant that if they tried to go ashore to pick up supplies they risked being arrested. This was, they declared, effectively a claim beyond 3 miles. But on the advice of the Law Offices the Foreign Office in London decided that the Netherlands government was entirely within its sovereign rights to impose such a provision if it wished to do so.33 Sometime during these proceedings Van Hoëvell received a written apology from the Pearling and Trading Company for O’Kelly’s behaviour. Still unresolved was the question of whether reefs lying close to the coast that fell dry at low tide could be regarded as extensions of the coast but that would have to await further investigation. Soon the storm subsided. But the activities of the pearl-shellers raised what was for the Indies government an even deeper problem than how to deal with the exploitation of the Back Shore. In 1891 it had occurred to officials that they had little idea about what rights the rulers of the self-governing territories might claim to pearl banks off their shores. If rulers in fact made such claims, what powers, if any, did the government have in relation to these waters? Specifically, did it have the right to grant permission to collect shell in these waters or did that right lie with the rulers? The director of the Internal Administration (the Binnenlands Bestuur, the European civil service) argued that the idea of exercising such rights out to a certain distance from the coast was of Western origin and was tied up with international rights and obligations that were of concern to the indigenous rulers only insofar as these were retained in their agreements with the Netherlands. Even if he was wrong about this, he added, he would advise against allowing the rulers to issue permits since they lacked the means to exercise effective control over the waters adjacent to their territories.34 The Council of the Indies, which advised the governor-general on policy matters, was appalled by the director’s disregard for “the rights of the Native Princes” and recommended that the government find out just what rights the indigenous rulers were exercising before it took any action.35 As a result of this recommendation the government conducted a survey to provide it with information on such matters as the extent of pearl banks in the self-governing territories and whether the rulers believed they had “the right of disposal [het recht van beschikking]” over the seas out to a certain distance from their coasts.

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When it was completed in 1893 the survey revealed a spectacular variety of ideas and practices.36 A few rulers claimed no rights whatsoever over the waters adjacent to their land territories. “Greedy [geldzuchtig]” though he was, the former ruler of Mempawah in West Borneo, for example, never exercised any rights over the waters adjacent to his territory and never stopped people from nearby Pontianak from exploiting the pearl banks in those waters. But many other rulers did see themselves as having various rights over the waters near their coasts. The sultans of Ternate and Tidore, for example, divided up between them the ownership of pearl banks in the northern Moluccas and exercised various rights over those banks. Thus, following “centuries-old custom”, the sultan of Ternate held the exclusive right to collect pearl oysters and tripang in waters deeper than 3 fathoms in the areas that belonged to him. Any foreigner wishing to collect shell in these areas had to obtain a licence from the sultan. The rulers along the east coast of Borneo claimed similar rights to the resources found on coral reefs off their shores. The sultan of Gunung Tabur imposed a levy on all sea products collected on certain reefs in the Celebes Sea. Most collectors were charged according to how much they collected, but those coming from the southern Philippines were charged a fixed fee, since they had a reputation for concealing any pearl-shell that they collected under the less valuable tripang. According to the survey, some of the revenue raised from these sources went directly to the sultan, while some of it was allocated to “the realm”. The survey revealed that the indigenous authorities along both the east coast and the west coast of Sumatra regarded pearl banks off their coasts as part of their “domains” and exercised the exclusive right to levy a tax on the products of the sea. At least some of these domains extended well beyond 3 miles from the coast. Finally, the survey provided evidence that the rulers of at least some of the self-governing territories had been granting licences to foreigners with the approval of the government in Batavia. For example, the government had recently endorsed a lease that the sultan of Tidore had granted to a company planning to exploit some of his pearl banks. Thus, the survey found, the rulers of many self-governing territories did indeed claim rights to the waters off their coasts and at least to some extent the government had recognized those claims. Just what the government would do with all the information it had collected, however, remained to be seen. A basic question the government had yet to resolve at this time was just how far its jurisdiction extended out to sea. This question remained unresolved even in the case of those areas where there was no doubt that that jurisdiction, whatever form it might take, was in the hands of the government, namely, the areas that were directly ruled by Batavia. Again it was Australians exploiting the riches of the Eastern Seas who forced the government to give much more thought to the extent of its jurisdiction over the sea. In January 1888 the Costa Rica Packet, an Australian whaling barque based in Sydney, came across an abandoned boat (perahu) carrying crates of spirits and kerosene somewhere off the coast of Buru.37 Although the crates were marked with the name of a local firm, the crew sold some of the goods

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when they landed at a nearby port a short time later. Nearly four years after this incident, following allegations that he had stolen the goods, the captain of the Costa Rica Packet, John Carpenter, was arrested by the Dutch Resident when the Costa Rica Packet landed at Ternate while on another whaling expedition. He was then transported to Makassar, where he was thrown in jail and questioned before being released two weeks later. When Carpenter returned to Sydney, he and the owners of the Costa Rica Packet prepared a damages case against the Netherlands. He insisted that the Netherlands Indies government had no power to arrest him, because the Costa Rica Packet had been on the high seas at the time it came across the boat and had therefore been entitled to salvage the goods. Under pressure from the Australian press, Australian commercial interests, and the governor of New South Wales, all of whom attacked the Indies government for violating the freedom of the seas, the British government agreed to bring a claim for damages against the Netherlands. The Dutch government immediately rejected this claim, but after prolonged discussion the two governments agreed to submit the matter to the court of the czar of Russia for arbitration. Much of the case hinged on the question of whether the Costa Rica Packet had been within the territorial waters of the Netherlands Indies when it came across the boat. Relying on Carpenter’s evidence, the British claimed that the ship had been as much as 30 miles from the coast, far beyond the 3 miles that they insisted constituted the internationally accepted limit. The Dutch argued that the Netherlands was not bound by the 3-mile limit. Although the government had specified that the 3-mile limit applied to fisheries and a number of other particular activities, the government had never passed any law limiting its sovereignty to 3 miles. That being the case, they concluded, the cannon shot rule still applied in the Netherlands and the Indies. Although the British government had not entirely abandoned the cannon shot rule itself, the British countered that this rule was a relic of a bygone age. As it happened, the arbitrator appointed by the Russian court, Frederic de Martens, was a champion of the cannon shot rule.38 De Martens in fact began his ruling, which he handed down in 1897, with the assertion that “the right of sovereignty of the state over territorial waters is determined by the range of cannon measured from the low-water mark”. Nevertheless, he ruled against the Netherlands, for he concluded that despite the great increase in the range of cannons in recent years the boat had been seized “incontrovertibly outside the territorial waters of the Dutch Indies”.39 Thus, the cannon shot rule carried the day even though the party relying on that rule lost the case. The Costa Rica Packet case settled little. Instead it highlighted the prevailing confusion about the breadth of the territorial sea. Even within the Netherlands officials were deeply divided about whether the width of the territorial sea should be defined by the range of artillery or by a fixed distance and, if the latter, what that distance should be. It was best, they appear to have decided, to proceed with great caution. But they disagreed about which approach would be the most prudent

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in the circumstances. When, just a few months after de Martens’s ruling, the Netherlands Indies government drafted a new pearling ordinance, it decided that, like the 1893 ordinance it was replacing, the ordinance should regulate pearling in “the territorial waters” of the Netherlands Indies, but when the draft reached the Netherlands a majority of the members of the Council of State decided that the ordinance should refer to a particular distance. Two of the members, both distinguished authorities in international law and strong advocates of the cannon shot rule, vigorously argued that any mention of a specific distance would give other governments the impression that this distance indicated the outer limit of the territorial waters of the Netherlands Indies.40 Eventually, however, the minister of colonies, having convinced himself that there was no such danger, decided that the ordinance would in fact refer to a specific distance and that that distance would be 3 miles. Thus, the 1902 pearling ordinance made no mention of territorial waters but instead declared that its provisions applied to the collection of pearl oysters, pearl-shell, and sea cucumbers “within a distance of not more than three English sea miles of the coasts of the Netherlands Indies” and that this distance would be measured “from the low water line along the coasts of the islands belonging to the Netherlands Indies”.41 In this way the government continued to leave open the possibility of claiming some greater distance as the outer limit of its territorial waters but dealt with the immediate problem of regulating the pearling industry. While the government was working its way through drafts of the pearling ordinance, officials in Batavia and The Hague engaged in a prolonged and at times bitter debate about whether the government had an obligation to respect the rights the rulers of many self-governing territories exercised over the waters adjacent to their lands.42 On one side were those who argued that the government did indeed have such an obligation. The government, they argued, was bound by its treaties with the self-governing territories to respect their sovereignty and the lack of any specific mention of the sea in these treaties did not mean that these territories did not include a band of water adjacent to their coasts. On the other side were those who argued that the government was under no obligation to respect these claims. As they saw it, the treaties had given the government the responsibility of protecting the self-governing territories. Since the very reason for the existence of territorial waters was to provide security, the responsibility for regulating what went on in those waters fell entirely on the shoulders of the government. Therefore, they reasoned, only the government could have jurisdiction over the waters off the coast of the self-governing territories. Their opponents in this debate replied that such reasoning in effect denied the sovereign rights of the self-governing territories and threatened the constitutional basis of the Netherlands Indies, but the officials intent on ensuring that the government would have jurisdiction in the waters adjacent to these territories then called on an argument the director of the Interior Administration had used in 1891. The self-governing territories, they insisted, could not have territorial waters because

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the concept of territorial waters was purely European in origin. This argument infuriated the officials fighting for recognition of the rights claimed by the rulers, for, as they saw it, it showed complete ignorance of the close association the peoples of the Indies had long had with the sea. This was the position taken by the Council of the Indies when, in 1898, it argued that it was only natural that realms that depended so much on the sea for their livelihoods would have territorial waters. According to one member of the council, “the rajas of the native states that have coasts commonly speak of saya punya laut [my sea]”.43 As it happened, some stunning new evidence regarding the rights exercised by indigenous rulers emerged during this debate when a mining company applied to the government to extract tin ore from the seabed off Lingkep in the Riau-Lingga Archipelago. The sultan of Riau-Lingga, officials soon learned, claimed “territorial rights [gebiedsrechten]” that extended out first to the low water mark (tubier), then covered all flats and reefs in nearby waters, included the sea between the surrounding islands that could be seen with the naked eye, and, finally, applying a method that European states had often used for determining the limit of their jurisdiction over coastal waters, extended out to the horizon as seen from the shore. The extent of a maritime jurisdiction determined by the range of vision can of course vary greatly depending on where, how, and under what conditions the observation is made, but if it were made on a clear day at a point 6 feet above the edge of the water then the area over which the sultan claimed jurisdiction extended out to just under 3 miles from the islands of the Riau-Lingga Archipelago.44 The resident commented that whatever the terms of the various treaties between the sultanate and the Netherlands the sultan “in fact conducts himself as if he exercises dominion [heerschappij] over the territorial sea”. Specifically, the sultan not only issued permits for the operation of fishing stakes and collecting sea cucumbers, agar-agar, turtle shell, and other sea products but also demanded payment for collecting limestone on coral reefs, banned the placing of traps in areas where agar-agar was collected, tried cases of misdeeds committed by his subjects “in these territorial waters”, and flew only his own flag (rather than that of the Netherlands Indies as well) on his ships.45 This was the most compelling evidence yet that at least one ruler claimed territorial waters in the European sense of the term. Those who were determined to deny the claims of the self-governing territories were unmoved by such evidence. Significantly, their number included the most powerful participants in this debate, of whom the highest ranking was the minister of colonies. At this stage in the debate the minister’s secretary-general, A.F. Elias, turned to a book by a leading authority on international law, Franz von Liszt of Germany, for support. Liszt’s view was that only civilized states, namely the Christian states of Europe, knew international law and that uncivilized or partly civilized states came under international law only in so far as they were bound to European states. Therefore, Elias argued, the Netherlands Indies had a territorial sea only because the Netherlands had established it as a colony. The extent of the

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territorial sea was fixed by the range of the cannon. That meant that if native states had any jurisdiction over the waters adjacent to their land territories it extended no further than it was possible to throw a stone or shoot an arrow since, so he seems to have assumed, these states had no means of projecting their power any further out to sea. In brief, native states had never had any right to a territorial sea and indeed never could have had such a right. In the end, Elias’s view carried the day. The minister of colonies took the step in 1902 of denying the self-governing realms any possibility of having their own territorial waters. From that date on, the government declared, only the government in Batavia could exercise sovereignty over the sea. The government did allow those rulers who had exercised certain rights over the collection of pearl oysters and other marine resources to continue exercising these rights but it made it clear that it did so only as a “favour [gunst]”.46 If the government wanted to impose conditions on the exercise of those rights or wanted to withdraw them altogether it could do so. Whatever sovereign rights the self-governing realms had had over the waters next to their territories had now been extinguished.47 *** A short time after the government had taken this huge step officials began pondering the question of whether the provisions of the pearling ordinance applied to waters surrounding rocks, reefs, and banks. After reviewing treaties then in effect in Europe and assuring itself that the British would probably not object to the step it was about to take, the Ministry of Colonies decided that the distance of 3 miles should be “calculated from the low-water line of the coasts of the islands belonging to the Netherlands Indies, as well as of rocks, banks, and reefs, both those always remaining dry and those falling dry at low water, whose low-water line lies no more than six miles from the nearest coastal low-water line”. This decision alarmed the governor-general, J.B. van Heutsz, who feared that it would give the impression that rocks, reefs, and banks lying further than 6 miles from an island that always remained above water did not belong to the Netherlands Indies and thus could be occupied by a foreign power. According to Van Heutsz, the pearling ordinance should apply to waters around all rocks, reefs, and banks that were above water at all times no matter where they were located as well as to those within 6 miles of an island that fell dry at low water. But after considerable internal discussion the ministry stuck to its original position. In its view the new form of words had nothing to do with the question of whether or not particular rocks, reefs, and banks belonged to the Netherlands Indies. According to the ministry, Van Heutsz had also made the mistake of imagining that each rock, bank, or reef lying close to an island was surrounded by its own 3-mile-wide band of water. In fact, so the ministry declared, pursuing the kind of argument Roëll had suggested a decade earlier, these elevations formed part of the coast of the island. Thus, as an official showed in the

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diagram reproduced in figure 1.1, this band of water surrounded the island and its nearby rocks, reefs, and banks, encircling them as a whole. As a consequence, so the same official wrote, the water between these elevations and the island had the status of “inland sea [binnenzee]” exactly like the waters between the marshes (wadden) and the coast of Friesland. Moreover, he added, Van Heutsz’s proposal that the wording should be changed to make it clear that the pearling ordinance applied to all rocks, banks, and reefs permanently above water, not just those lying within 6 miles of a coast, was entirely unnecessary, since such elevations were themselves islands. In light of all this, the minister instructed the governor-general to amend the pearling ordinance using the ministry’s wording.48 This he did in August 1905.49 The government still had not made any decision about the extent of its territorial waters, but it was beginning to describe more precisely the extent of its jurisdiction over one particular activity.

Figure 1.1 The extent of the government’s jurisdiction around an island and a rock lying 6 miles from the island, as portrayed by a Ministry of Colonies official in 1905

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THE FISHERIES ORDINANCE Just as the activities of Australian pearl-shellers had pushed the Netherlands Indies to this point so too did another group of foreigners compel officials to go a step further.50 In 1913 a Japanese resident in Batavia wrote to the Indies government asking for permission to fish in its territorial waters. Apparently unbeknownst to the applicant, he was already free to fish wherever he wished, since the government had no laws regulating fishing in waters along the coasts of the islands of the Netherlands Indies. But because the applicant was the son of a local hotel owner suspected of spying for Japan and because officials suspected that the applicant’s true purpose was to collect sensitive information for the Japanese navy they simply told him that they would consider his request. In fact, they devoted most of their attention to broader questions raised by the request. Initially, they focused entirely on how they might close off coastal waters, or at least strategically sensitive areas, from foreign fishing boats, but soon they also considered the possibility that the Indies government should follow the lead of many other governments in reserving the fishery resources in its coastal waters for its own subjects. This idea was in keeping with a broader change in outlook within the government known as the Ethical Direction which aimed to do more to improve the living conditions of the indigenous people of the Indies. In the case of fisheries, officials hoped to improve the livelihoods of indigenous fishing communities, provide the people of Java with a cheap source of protein, and reduce the colony’s dependence on imports of salted fish from Siam. These goals sometimes clashed with the government’s reliance on its salt monopoly for a large proportion of its revenue—the monopoly’s salt was so expensive that it was uneconomic to use it for processing fish—but it was taking some steps to develop the indigenous fishing industry. By 1913 the fisheries station in Batavia, which the government had set up in 1904, had already done extensive research on fish populations, fishing methods, and techniques for preserving fish.51 In order to reserve coastal fishery resources for subjects of the Netherlands Indies Dutch officials began in 1915 to draft a fisheries ordinance to accompany the 1902 ordinance dealing with pearl oysters and other sedentary species. As soon as they began this work, however, they faced the old question of whether the ordinance should apply to waters out to a specific distance from the coast or simply to the “territorial waters” of the Indies. The commander of the Indies navy, Vice Admiral F. Pinke, strongly advised against specifying the distance. Like the two members of the Council of State who had opposed any mention of a specific distance in the pearling ordinance, Pinke argued that the more the government issued ordinances referring to a specific distance the more it gave other governments the impression that its territorial waters extended out to that distance. In the end, the Netherlands government decided to adopt an approach that it hoped would give it the best of both worlds. On the one hand, the government should provide a very clear idea of exactly how far its jurisdiction extended out from the islands

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of the Indies and it should refer to this distance in the ordinance. On the other hand, the ordinance should make no mention of “territorial waters”, thus giving the government the possibility of declaring at some later date that the territorial waters of the Indies extended further out into the sea than the distance specified in the fisheries ordinance. That distance, officials concluded, should be 3 miles. Thus, the government had come very close to deciding that the breadth of the territorial waters of the Netherlands Indies would be 3 miles; it was just that it was not prepared to commit itself to this figure publicly. By the time officials were resolving this question the outbreak of war in Europe again forced them to confront the question of rocks, reefs, and banks. In order to maintain the neutrality of the Netherlands they believed it was essential to prevent any foreign power involved in the war from trying to construct some sort of installation on one of these elevations. At the same time they wanted the legal power to stop “plunder-fishing [roofvisscherij]” near such elevations, where many fish species were much more abundant than in deep waters. Under international law, it appeared, the Netherlands could not claim rocks, reefs, and banks lying far out in the sea as part of the territory of the Indies, but at this point the minister of foreign affairs, John Loudon, proposed a solution based on a radically new conception of the relationship between the islands making up the Netherlands Indies and the seas within which these islands were located. “One wonders,” he wrote late in 1917, “whether an archipelago that forms a more or less geographically and economically coherent whole should not follow a different policy” with regards to rocks, reefs, and banks. Specifically, the government could take as a precedent the 1885 treaty between Spain, Great Britain, and Germany that recognized Spanish possession of all islands in “the Sulu Archipelago” whether or not these islands were inhabited. If the Netherlands were to adopt the principle lying behind this treaty, all the rocks, reefs, and banks “in the Netherlands Indies Archipelago” would be considered Netherlands territory. Other states might challenge this view, but the government would at least, Loudon explained, have made its position stronger and shown that “we consider this area as falling under our jurisdiction [rechtsgebied]”. The government would also have taken a step towards combating plunder-fishing. Moreover, it would instantly have overcome the age-old problem of distinguishing islands from rocks, reefs, and banks, for the waters around all of them would now fall under the government’s jurisdiction.52 Underlying this vision was the notion that there really was such an entity as “the Netherlands Indies Archipelago”. As its name suggested, the terrestrial components of this archipelago corresponded to the land governed by the Netherlands Indies government. Whether the archipelago formed a geographically and economically coherent whole is highly questionable. After all, the northern third of Borneo and the eastern halves of Timor and New Guinea belonged to other states. But by 1917 it seemed to form a geographical entity. By this time there were no more pockets of independent indigenous sovereignty lying amidst the bits and

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pieces making up the Netherlands Indies. By 1908 government forces had mostly subjugated Aceh, crushed three Balinese principalities that had resisted the Dutch, and subdued a number of indigenous realms on islands to the east of Bali.53 Thus, the Netherlands Indies was now easily perceived as a geographical entity by those who had constructed it as a political entity. At the same time, it was becoming easier for officials to imagine, as Loudon did, the Netherlands Indies as forming an economically coherent whole as well. The establishment of a single customs area, the purging of foreign currencies from circulation, and, perhaps most important, the extension of the KPM’s services to “even the most remote outports” of the Indies were laying “the foundations for economic and administrative integration”.54 In the minds of Dutch officials at least, “the Netherlands Indies Archipelago” really did exist. It was, as one of them later admitted, a “vague” term55—it left open the question of exactly which rocks, reefs, and banks belonged to the Indies—but the implication was that it encompassed all the islands, rocks, reefs, banks, and seas within its ill-defined boundaries. All were part of this archipelago even if they were not all under the formal sovereignty of the Netherlands Indies. The minister of colonies immediately informed the governor-general that he agreed with Loudon’s solution to the question of rocks, reefs, and banks and asked him to incorporate it into the new fisheries ordinance and to amend the pearling ordinance accordingly.56 Perhaps because of the many other issues that had to be resolved such as the precise definition of those “Netherlands Indies subjects” for whom fishing would be reserved, however, the Indies government did nothing at this stage to finalize a fisheries ordinance. As the war continued in Europe it instead dealt with the more immediate problem of trying to prevent espionage in strategically sensitive coastal waters. In June 1918 it issued an ordinance giving the governor-general the power to declare certain “bodies of water bordering the coasts of the Netherlands Indies” as “maritime districts [maritieme kringen]”. The ordinance forbade any fishing in these districts except by people belonging to “the Native population proper”, though the governor-general could permit other individuals who had been fishing in those areas to continue doing so and could grant permits to others if doing this would significantly benefit the “Native population properly speaking [de eigenlijk gezegde Inlandsche bevolking]”. The ordinance specifically forbade anyone who was not authorized by the proper authorities from taking photographs or coming ashore in these districts, and it gave the heads of provincial administrations the power to temporarily ban all shipping in maritime districts within their provinces.57 On the same day that it issued this ordinance the government issued another proclaiming the five maritime districts shown in figure 1.2.58 These included the waters within 3 miles of the eastern and western shores of the Sunda Strait; the northwest and northeast coasts of Java, where the two main ports, Tanjung Priok and Surabaya, and their naval facilities were located, and the islands lying in the approaches to these coasts; the coast near Cilacap, the only important port on the south coast of Java; the coasts of the

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Karimunjawa Islands to the north of Java; and the coasts of Weh, off the northern tip of Sumatra, where the navy had a coaling facility. The ordinance did nothing to clarify the government’s view on the extent of its territorial waters, but yet again it affirmed a particular form of jurisdiction out to 3 miles, this time from certain coasts. Equally important, it affirmed sovereign rights over these waters, for the government had given itself the power to exclude any form of intrusion into this space. By end of the war in Europe the Netherlands Indies had a number of ordinances referring to the territorial waters of the Indies and others describing specific forms of jurisdiction in waters out to 3 miles from the coast but no declaration of any sort explicitly stating that its territorial waters were 3 miles wide. In 1920 a royal decree regulating the admission of foreign warships into the territorial waters of Dutch colonies finally took this step.59 According to the decree, which was apparently prompted by a desire to restrict the movement of Japanese warships (including those obtaining oil supplies from ports in East Borneo) in the coastal waters of the Netherlands Indies,60 the territorial waters of these colonies were “the coastal sea to a distance of three sea miles”. Following a provision in the North Seas Fisheries Convention, it further declared that in the case of bays the distance of 3 miles would be measured out from a straight line drawn across the bay at the first point at which it was possible to do this with a line no more than 10 miles long. Any waters on the landward side of such a straight line had the status of internal waters (binnenwateren), where under international law foreign vessels did not enjoy the right of innocent passage. It is unclear why the decree took the leap of both referring to the territorial waters of the colonies and defining the breadth of those waters, but since the decree dealt with a matter so fundamental to the security of the colonies officials presumably wanted to emphasize the government’s sovereignty over coastal waters and make it clear to foreign warships which waters were subject to the decree. In any case, the government had taken a momentous step. Strictly speaking, the definition of the territorial waters of the colonies contained in the decree applied only to the question of regulating the admission of foreign warships into coastal waters, but at least when it came to this question the government had defined the territorial waters of the Netherlands Indies by declaring them to be 3 miles wide. And, though only in the special case of bays, the government had used straight lines for delimiting its territorial waters for the first time. The Indies government still faced the question of what to do about the Japanese fishing in coastal waters.61 Particularly difficult was the problem of how to deal with the Japanese fishermen based in Batavia. On the one hand, the people of Batavia were coming to rely on the fish they delivered to the local market. On the other, there was no doubt that the Japanese were regularly violating the Maritime Districts Ordinance. Nearly all of the fish supplied by the Japanese were fusiliers (caesionids, ekor kuning in Malay) caught, using the muro ami method,

Figure 1.2 Maritime districts declared by the Netherlands Indies government in 1918

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along the slopes of the coral reefs in the Thousand Islands (Kepulauan Seribu) to the northwest of Batavia.62 The waters within 3 miles of these islands were (as shown in figure 1.2) part of a maritime district and most of the coral reefs in this area lay within 3 miles of one island or another. In short, virtually all of these reefs were covered by the Maritime Districts Ordinance and therefore out of bounds for Japanese fishing vessels unless they had received permission to fish there. Arguing that the Japanese were making a major contribution to the food supply of the people of Batavia without harming the interests of the Thousand Islanders, who up to that time had rarely caught fusiliers, the director of the marine research laboratory in Batavia, H.C. Delsman, suggested to the commander of the Indies navy, Vice Admiral A.F. Gooszen, that at the very least the Japanese should be allowed to fish in the most northerly part of the Thousand Islands. After the commander conceded that there was little reason from a security point of view that the Japanese could not fish in that area, Delsman then encouraged a Japanese firm to apply for permission to do this. Following advice from a number of officials, however, Gooszen rejected the application on the grounds that the proposed venture would harm the interests of the Thousand Islanders. The Regent of Batavia’s report that the islanders complained bitterly about how they always received low prices when they delivered their catches to the market in Batavia because by the time they arrived the Japanese fishermen, who had motorized vessels, had already saturated the market appears to have provided Gooszen with all the justification he needed to reject the application. There was no doubt, wrote Gooszen in response to public criticism from Delsman and others, that the Japanese have “their eye on our archipelago for the expansion of their fishing grounds”. Nothing could be done to stop them fishing on the high seas but where this “urge to expand [expansiezucht] extends to territorial waters we must exercise vigilance, first of all in the interests of our own people”.63 Sentiments such as these pushed the government to complete work on the fisheries ordinance. When it finally appeared in 1927 the Fisheries Ordinance avoided any mention of the “territorial waters” or “territorial sea” of the Netherlands Indies. Rather than simply stating that its provisions applied to the waters within a certain distance of the coast, however, it proclaimed that they applied to the “sea territory [zeegebied] of the Netherlands Indies”. Following the principle laid down by Loudon, the ordinance declared (as illustrated in figure 1.3) that this territory extended out to 3 miles from the low-water line of all the islands, and of all the rocks, reefs, and banks falling dry at low water, “in the Netherlands Indies archipelago”.64 It would be difficult to calculate just how much area the inclusion of outlying rocks, reefs, and banks added to the “sea territory” of the Netherlands Indies, but it must have been substantial, for each of the many thousands of low-tide elevations lying scattered throughout the seas of “the archipelago” now generated a territory of at least 28 square miles. Many of these patches of territory overlapped one another, but even so this feature of the ordinance had suddenly brought an immense area

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of water under the government’s jurisdiction. In keeping with the royal decree of 1920 the ordinance declared that in the case of bays the distance of 3 miles was to be measured out from a straight line no more than 10 miles long drawn across the bay. Probably because the ordinance was not intended to delimit the area over which the government asserted sovereignty it made no mention of the status of the waters on the landward side of such straight lines, but the implication was that these were internal waters. The ordinance gave all subjects of the Netherlands (not just members of “the Native population proper”) the right to fish in the newly proclaimed “sea territory” and forbade all others from fishing in these waters without permission from the proper authorities. The ordinance required everyone to respect the customary “fish rights [vischrechten]” of the “Native population” and the privileges granted to self-governing territories in relation to the marine resources along their coasts.

Figure 1.3 The concept of “The sea territory (zeegebied) of the Netherlands Indies” according to the Fisheries Ordinance of 1927

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After listing the conditions that individuals and companies fishing in the sea territory of the Indies had to observe, the ordinance described the penalties that the government could impose on anyone violating those conditions. Accompanying this ordinance was another ordinance regulating whaling. It did not use the term “sea territory” but otherwise defined the waters where it applied in exactly the same way. The ordinance prohibited whaling in the sea territory of the Netherlands Indies except by those members of the “Native population” who had traditionally hunted whales and by others who had received permission from the governor-general to engage in this activity.65 Together, the fisheries and whaling ordinances extended the government’s jurisdiction over a greater area and took a further step in thickening its jurisdiction in the waters along its coasts. Equally important, they gave legal status to the notion of “the Netherlands Indies archipelago”. Officials had imagined this entity; now they had passed laws making it a reality.

CHAPTER 2

The Territorial Sea and Maritime Districts Ordinance Territorial The Maritime and Sea Districts Ordinance

With the passing of the fisheries and whaling ordinances the Netherlands Indies government had defined its jurisdiction with respect to those activities but it still had no ordinance clearly delimiting its territorial waters. The Maritime Districts Ordinance of 1918 referred to the territorial waters of the Netherlands Indies but said nothing about how wide these waters were. The ordinance announcing specific maritime districts declared that these districts were 3 miles wide but avoided any reference to “territorial waters”. The royal decree of 1920 had finally declared the width of the territorial waters of Holland’s colonies to be 3 miles, at least in dealing with the admission of foreign warships but, unlike the fisheries and whaling ordinances, it made no mention of rocks, reefs, and banks. Thus, the waters surrounding rocks, reefs, and banks belonged to the “sea territory” of the Netherlands Indies but not necessarily to its territorial waters. None of this worried officials in Batavia. Each ordinance served its specific purpose. By the early 1930s, however, the unrelenting intensification of the Japanese presence in the seas surrounding the islands making up the Indies convinced officials that they now had to delimit the territorial waters of the Indies as precisely as possible.

THE JAPANESE Japanese fishing activities expanded significantly during these years.1 The muro ami teams based at Batavia reached further out from their home port, scouring the reefs near Bawean and elsewhere in the eastern part of the Java Sea, near Bangka and Belitung, and along the west coast of Sumatra. Muro ami teams began operating out of Menado and Ambon as well. Because of the nature of this form of fishing they almost always operated within 3 miles of an island or of a reef falling dry at low water and therefore inside the “sea territory” of the Indies. Starting about 1927 Japanese fishing companies began operating pole-and-line vessels from bases in Menado and Ambon. Because the skipjack tuna that they were targeting were most abundant in deep, open waters these vessels usually fished more than 3 miles from the nearest coast, but in order to catch these fish they first needed 26

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to obtain large quantities of tiny bait fish from close to the shore. The Japanese sometimes bought bait fish caught by local people. In some cases, however, they leased the right to collect these fish from local headmen, even though the Fisheries Ordinance prohibited any transference of the fishing rights of the indigenous people.2 And often they simply caught the fish using their own nets without requesting permission from any authority. In addition to the various enterprises based in the Netherlands Indies Japanese firms based in Singapore that engaged in muro ami fishing, driftnetting, and trolling fished inside the “sea territory” of the Netherlands Indies at least some of the time. For example, muro ami teams operating out of Singapore regularly fished in the Riau-Lingga Archipelago and around the Anambas Islands. By the late 1920s various fishing communities in the Indies were complaining bitterly that the Japanese were destroying their livelihoods. These complaints appear to have been aimed not only at the impact the Japanese were alleged to be having on fish stocks (undoubtedly great in the case of the muro ami fishery but probably very much less in the case of the others) but also on the way Japanese vessels sometimes interfered with local fishermen and the way in which the Japanese were bringing down the prices previously received by local fishermen by supplying so much fish to local markets. Whatever the nature of the complaints, Japanese fishing was becoming an even greater political issue than it had been earlier in the decade. In 1929 those fishermen of north Sulawesi who felt aggrieved by the Japanese found a champion in G.S.S.J. Ratu Langie, a Minahasan who had studied in Holland and Switzerland. Speaking in the Volksraad, the advisory council that the government had set up in 1918, he claimed that “the sea is being swept clean” by the Japanese and that they were operating close to the coast “in a manner that made fishing by the local population impossible”. Ratu Langie called on the government to exercise better control over “these foreign fishermen”. When the director of agriculture, industry, and trade, Ch. J. Bernard, finally responded three weeks later he merely said that the government knew nothing about the activities Ratu Langie had mentioned but that he would write to the Resident of Menado for further information. This response did nothing to reassure Ratu Langie. After repeating his charge that the Japanese were sweeping the sea clean, he noted that the fishermen of north Sulawesi conducted a lot of their fishing more than 3 miles from the shore and asked whether the government might consider increasing the width of the territorial waters of the Netherlands Indies. “Just have a look at America’s territorial waters!” interjected a Dutch member of the Volksraad, implying that Ratu Langie should have known better than to make such an outrageous suggestion. Endorsing the interjection, Bernard added that it was impossible to increase the width of the territorial waters of the Indies, since it was “fixed internationally” that the waters beyond 3 miles from the coast were “free sea [vrije zee]”.3

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Bernard’s response was disingenuous at best. The 3-mile limit was of course “fixed internationally” in the minds of the British and some other governments, but many other governments did not regard it as fixed. They did not even agree on whether the width of territorial waters had to be the same for all states, nor did they agree on whether it would be appropriate in the case of fisheries, customs, and certain other matters to allow states to extend their jurisdiction beyond their territorial waters and, if so, how far. They also had differing views on exactly where to draw the baselines used as the starting point for measuring territorial waters. Indeed, it was precisely because of this lack of agreement on territorial waters as well as on certain other areas of international law that the League of Nations had decided in 1927 to hold a conference for the codification of international law. By the time the exchange between Ratu Langie and Bernard took place plans were well underway for such a conference to be held in The Hague in 1930.

THE CODIFICATION CONFERENCE In the lead-up to the conference the preparatory committee asked governments to answer a series of questions concerning their position regarding territorial waters. The most important of these questions asked how wide these waters should be. In The Hague and Batavia officials considered the possibility that the Netherlands should take a position in favour of 6 miles as the width of territorial waters, but they rejected this very quickly. The commander of the Indies navy, A. ten Broecke Hoekstra, warned that while extending the width to 6 miles would give the government rights over a greater area it would also burden it with correspondingly greater obligations, particularly in relation to the maintenance of neutrality.4 Under the Convention on the Rights and Duties of Neutral Powers in Naval War of 1907 these obligations were significant. If a ship was captured in the waters of a neutral state, for example, then that state was required to “employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and crew, and to intern the prize crew”. A neutral state was also required to exercise sufficient surveillance over its waters to ensure that all the provisions of the convention such as those concerning how long the ships of a belligerent were permitted to be in the waters of the neutral state were observed.5 These obligations were very much in the minds of Dutch officials when they decided not to propose 6 miles as the breadth of territorial waters. The Netherlands had remained neutral in the Great War and, they hoped, would do so in any future conflict. Ten Broecke Hoekstra suggested that the government might establish a strip seaward of the belt of territorial waters where it could exercise specific rights such as in relation to fishing. Establishing such a strip would, he argued, not increase the government’s responsibilities when it came to maintaining its neutrality.6 But this idea was dropped as well.

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In December 1928 the Netherlands government thus informed the preparatory committee that the conference should “adopt a uniform width (preferably three nautical miles) for the territorial waters of all States and for all purposes”.7 The government went on to acknowledge that exceptions might be made in certain special cases but otherwise its response resembled Great Britain’s reply that “a convention fixing the uniform breadth of three miles for all States and for all purposes is both possible and desirable”.8 In contrast to the position taken by the Netherlands and Great Britain, Italy asserted that the width of territorial waters should be 6 miles with “special rights for a further six miles”, while Portugal declared that “the extent of territorial waters cannot…be fixed at less than eighteen miles” and that even this distance might not be adequate for dealing with customs, pollution, and many other matters.9 Illustrating just how great the range of responses was, Latvia argued that the width of territorial waters should be 6 miles but added that in those areas where there were maritime fortifications “the limit should be extended up to the range of the guns mounted in such fortifications”.10 Thus did the cannon shot rule live on well into the twentieth century. Different though these responses were from one another, they all assumed that it should be possible to come up with a width that with rare exceptions would apply to all states. One state that rejected this assumption was Norway. “It seems neither possible nor desirable”, the Norwegian government declared in its response to the preparatory committee, “to draw up a convention fixing a uniform breadth for the territorial waters of all States for all purposes”: It would be difficult to agree upon a uniform rule, particularly in regard to the exclusive right of the inhabitants of the country to fish or engage in any other form of economic exploitation, since not only the customary practice and rights of the fishermen, consecrated by continuous usage, but also the geographical and other conditions in which fishing is carried on, vary widely in different countries. According to the government, the inhabitants of Norway’s rugged coast had “for ages had the exclusive right of fishing on the coastal banks, and this right is deemed indispensible for the subsistence of the coastal population”, which had enjoyed fishing rights within a 4-mile limit as “an age-long tradition”. Precisely for this reason the government had not been a party to the North Sea Fisheries convention, while a proposal Britain made in 1924 “to limit the breadth of her territorial waters to three nautical miles led to no positive result”. Concluding its response to the question of the width of territorial waters, Norway informed the committee of its inclination to support the view that “the breadth might be different for different States on the ground of special circumstances”.11 Closely related to the question of the width of territorial waters was the issue of the baseline that should be used as the starting point for measuring this

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band. Should that baseline, the preparatory committee asked, be “the low-tide line following the sinuosities of the coast; or a line drawn between the outermost points of the coast, islands, islets, or rocks; or some other line”? How should the line be drawn in the case of bays? Most governments that responded to these questions believed that in general the baselines should follow the low-water line but that it should be possible to draw a straight baseline across a bay and then measure the territorial waters out from that baseline. The main question for these states was whether the maximum length of that straight baseline should be, as it was for the signatories to the North Sea Fisheries convention, 10 miles or some other fixed length or whether special allowance should be made for “historic bays”. Again, Norway took a radically different position. As its response explained, the Norwegian coast is deeply indented by fjords and lined for most of its distance with thousands of islands, islets, and rocks that together form the skjaergaard (“rock rampart”). “From time immemorial, all waters on the landward side of the furthest rocks have been regarded as Norwegian inland waters.” Thus, the government drew straight baselines between the outermost points of the skjaergaard and then measured Norway’s territorial waters out from those baselines. The response noted that Norway had no rule regarding the maximum length of these straight baselines, the longest of which at that time was 25.9 miles long.12 In its response to the preparatory committee Sweden outlined a position very similar to Norway’s.13 A fundamental feature of the position adopted by Norway and Sweden was that it concerned islands, islets, and rocks that were regarded as being part of, or extensions of, a state’s coast.14 But what, a number of international bodies had recently been asking, about a group of islands located some distance from a coast? Could they be treated as forming a whole so that it would then be possible to measure territorial waters not from the low-water line of each individual island but from the outermost points of the group? If so, exactly what made it possible to refer to a number of islands as forming a group or archipelago in the first place? According to one view, a number of islands formed such a group if they lay within a certain distance of one another. The logical implication of this view was that it was necessary to determine what that distance should be before determining whether a number of islands formed a group. That distance was, for many holding this view, twice the width of a state’s territorial waters. Thus, for example, if the width of a state’s territorial waters was 3 miles, it could regard a ring of islands arranged in such a way that each island was no more than 6 miles from the next island as forming a “group” and then draw a belt of territorial waters that would encircle that group. According to another view, the starting point was the group or archipelago itself: it already existed as a “unit” or “whole”. The implication of this second view, in contrast to the first, was that there was no need at all to specify a distance, for it was history or, so it seemed, geographical reality rather than a particular distance that defined these islands as a group.15 As it happened, this was the position taken by a committee of experts established during the early stages of

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planning for the conference. “In the case of archipelagos,” its draft article on the subject read, “the constituent islands are considered as forming a whole and the width of the territorial sea shall be measured from the islands most distant from the centre of the archipelago.”16 There was no mention of a maximum distance between the islands. Nevertheless, the preparatory committee drafted its question regarding groups of islands on the assumption that there had to be some sort of limit. “How near,” the committee asked governments, “must islands be to one another to cause the whole group to possess a single belt of territorial waters?” There were broadly three types of responses to this question. First, several states including the Netherlands believed that islands could form a group as long as they were no more than a certain distance from one another. For the Netherlands as well as for Germany and Canada that distance was 6 miles (twice the width of the territorial waters, which they took to be 3 miles), while for Japan it was 10 miles.17 Second, Norway and Sweden noted that their legislation placed no limit on the distance between islands, islets, or rocks.18 Finally, in contrast to the first two types of responses, Great Britain and Australia rejected the premise in the preparatory committee’s question that in some circumstances islands could form a “group”. In their view there was no such thing as “a group of islands” in the legal sense. Each island had its own territorial waters regardless of how close one island might be to another. Whether the territorial waters of a number of islands overlapped or even overlapped in a way that left a pocket of high seas completely surrounded by territorial waters was entirely irrelevant.19 The United States did not directly respond to the committee’s question but none of the official statements that it quoted entertained the possibility of drawing straight baselines between the outer points of islands either deemed to form a group or lying along the coast of the mainland.20 Any consideration of the possibility of having a special regime for groups of islands raised the related question of what the status of the waters enclosed by the band of territorial waters encircling the group should be. At the time, there were among those who had given this question any thought two opinions. One was that these waters should be internal waters, while the other was that they should also be territorial waters. As the committee succinctly observed, “the first opinion is based on the interests of the coastal State; the second is more favourable to freedom of navigation.”21 The preparatory committee did not specifically ask governments to comment on this issue, but Canada offered the view that any area of water surrounded by a band of territorial waters “should be deemed…territorial waters”.22 As the date of the conference approached the committee prepared a “basis of discussion” on the question of groups of islands. The basis of discussion accepted that a number of islands could form a “group” but stipulated that a “belt of territorial waters shall be measured from the outermost islands of the group” only if the islands “at the circumference of the group are not separated from one

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another by more than twice the breadth of territorial waters”. “Waters included within the group,” it added, “shall also be territorial waters.” The basis of discussion proposed that the same rule should apply to “islands which lie at a distance from the mainland not greater than twice the width of territorial waters”.23 The preparatory committee thus arrived at a compromise that presumably satisfied neither states like Great Britain that rejected any notion of there being any such thing as a group of islands in a legal sense nor those like Norway that regarded rules regarding the maximum distance between islands as meaningless. In the end, the question of groups of islands was never discussed in the plenary sessions of the conference when the delegations gathered in The Hague in March 1930. A sub-committee did wrestle with this issue. However, while a majority of the sub-committee favoured adopting 10 miles as the distance of baselines from which territorial waters could be measured, “the idea of drafting a definite text on this subject” was “abandoned” because of (as a summary of the sub-committee’s work delicately put it) “the lack of technical details”. Without an understanding on the basic question of the circumstances in which islands might be regarded as forming a group the sub-committee “did not express any opinion with regard to the nature of the waters included within the group”.24 And there the whole matter was left. Making all of these matters even more difficult to resolve was the question of what sorts of small marine outcrops could legitimately be surrounded by territorial waters. This question was usually expressed by asking either what constituted an “island” or what characteristics an island had to have in order to be surrounded by territorial waters. This question had been crucial to the formulation of the 1927 Fisheries Ordinance, which declared that all rocks, reefs, and banks falling dry at low tide were surrounded by “sea territory” and that this occurred even if those features lay a long way from some coastline. The Netherlands government’s response to the preparatory committee’s question on this issue was consistent with this provision of the Fisheries Ordinance. In fact, it went even further by declaring that “an island should be understood to be any natural or artificial elevation of the sea bottom above the surface of the sea at low tide”.25 Strictly speaking, this meant that a lighthouse built on some distant rock would be surrounded by territorial waters even if that rock was below the surface of the sea at low tide. The British government’s response was very different: “An island is a piece of territory surrounded by water and in normal circumstances permanently above high water.” No outcrop that was “not capable of effective occupation and use” could be regarded as an island. Thus, the British insisted, there was no possibility of regarding rocks and reefs as islands, and this should be made clear in an international agreement.26 The preparatory committee adopted a position very close to that of the British. In its basis of discussion on this issue it declared that for an island to have its own territorial waters “it is necessary that it should be permanently above the level of high tide”. The only exception applied to “islands” lying within the territorial waters of another island or the mainland. Such “islands”

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could “be taken into account in determining the belt of such territorial waters” if that “island” was “above water at low tide”.27 Since the Fisheries Ordinance regarded any feature that was above water at low tide as having its own “sea territory”, regardless of where it was located, the Indies government would, had the committee’s view prevailed, have had to redefine the “sea territory of the Netherlands Indies” if it had wanted to conform to international law. But on this issue too the conference failed to come to an agreement. The codification conference failed to reach agreement on a convention on territorial waters. At the heart of this failure was the seemingly intractable question of the width of territorial waters. This question was of course difficult enough on its own but it was made all the more complicated by its interconnection with virtually every other question related to the law of the sea. For example, if the width were to be fixed at 3 miles, then for many states it was essential to have an additional contiguous or adjacent zone where they could exercise rights over certain activities such as fisheries, but once that width became greater then it might no longer be necessary to exercise as many rights within that zone or even to have a zone at all. Similarly, any increase in the width of territorial waters that had the effect of converting straits that had been part of the high seas into territorial waters made it imperative for those states such as Great Britain championing freedom of navigation to have a regime that allowed their ships to continue to pass freely through those straits. To take one last example, the question of the width of territorial waters was tied to the question of whether it would be appropriate to encircle a group of islands with a single belt of territorial waters if the outer islands of that group were sufficiently close to one another, since according to the position taken by a number of states including the Netherlands the maximum distance those islands could be from one another should be twice the width of the territorial sea. If territorial waters were 3 miles wide, each island would have to be within 6 miles of another, but if they were 6 miles wide then that distance would double to 12 miles, making it possible to bring more islands within the unit and, as a result, bring a far greater area of water under national jurisdiction. All these issues were so tangled up with one another that in the end agreement proved to be impossible. The conference had set out to codify an aspect of international law where there had been so little common ground that codification had been out of the question. The foreign ministry, admiralty, and other officials who formed the delegations to this conference had been in no position to overcome this fundamental flaw in the conception of the conference. “The question of the territorial sea,” a Dutch Foreign Ministry official observed, “ultimately lay in the realm of state sovereignty where only politicians could make decisions.”28 Despite its failure to agree on a convention, however, the conference was enormously important in several ways. Even if it was not embodied in a convention, the participating delegations endorsed the principle that, subject to the right of innocent passage, states exercised sovereignty over their territorial waters.

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Governments and international lawyers now had a far clearer idea of the nature of the issues that needed to be addressed. The conference placed on the record a great range of proposals and arguments that governments could, if they so chose, make use of in the future. Finally, the conference agreed on the meaning of basic terms to be used in later discussions. Most notably, the delegates cleared up confusion that had been associated with the term “territorial waters”. The problem was that while many states referred to the belt of water measured from coastlines and certain other baselines as their “territorial waters” others used that term more broadly to refer to the area encompassed by both this belt of waters and their internal waters. The conference agreed that the belt of waters should be called, as it already was by some states and writers, the “territorial sea”.29 In fact, the term “territorial waters” lived on in popular discourse and to some extent in official discussions as well, but one state that was quick to adopt the new terminology was the Netherlands Indies.

THE TERRITORIAL SEA AND MARITIME DISTRICTS ORDINANCE Officials in Batavia appear to have taken the decision to prepare an ordinance delimiting the territorial sea of the Netherlands Indies very soon after the conference finished. Ever present in their minds was the problem of how to deal with Japanese fishing boats, which they regarded as a threat both to the livelihood of indigenous fishermen and, because of the information they were assumed to collect on behalf of the Japanese navy, the security of the Indies generally. Far more than in the past, officials in the Indies now believed they had to take extreme care in handling incidents involving Japanese fishing boats. Japan’s military might was growing rapidly and the Japanese government was becoming increasingly ready to protect what it saw as the rights of its citizens. Just a few months after the conference officials in Batavia were alarmed by news that the Japanese government was considering arming Japanese fishing boats with machine guns so that they could protect themselves if pursued on the high seas. According to the information they had, the Japanese government had no immediate plans to do this in the Nanyo, the South Seas, but this was clearly a possibility in the future. “Here,” the commander of the Indies navy commented in September 1930, “is a circumstance where a precise delimitation of jurisdiction is essential.”30 But exactly how should the government delimit its jurisdiction? In the aftermath of the conference Ch. J. Bernard, the official who had so casually dismissed Ratu Langie’s suggestion to increase the width of territorial waters, expressed his regret that during the conference the Netherlands had not supported attempts to extend the width to 6 miles, but after Ten Broecke Hoekstra again objected that increasing the width of the territorial sea would make it much more difficult for the Netherlands to maintain its neutrality

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during war there was no further consideration of claiming any width greater than 3 miles.31 Some thought was given to the commander’s proposal to establish a special zone seaward of the territorial sea where the government would be able to exercise special rights in relation to fisheries and other matters. There was even some consideration of the possibility of trying to negotiate a treaty with Japan regarding fishing in that zone. Officials very quickly dropped this idea since, as the governor-general observed, the Japanese government was unlikely to agree to terms that were obviously intended to restrict the activities of Japanese vessels,32 and soon the idea of a special zone fell by the wayside as well. By the middle of 1931 or so officials were drafting an ordinance based on the principles that the width of the territorial sea should be 3 miles and that the government would not claim any jurisdiction in relation to fisheries or any other matter beyond 3 miles. The overriding concern was that the ordinance should not differ in any substantial way from international customary law, at least as it was understood by Great Britain, the United States, and other powers. Otherwise, the Indies could expect no support if it came into conflict with Japan over violations at sea.33 By October 1934 the government was able to submit to the Volksraad a draft ordinance that finally delimited the territorial sea of the Indies with considerable precision. The explanatory memorandum accompanying the draft captured the spirit in which it was written: Violations of fisheries and other regulations happen repeatedly in the sea territory of the Netherlands Indies, as do other events that are undesirable from the point of view of peace and security, without there being sufficient measures in place to deal with them. This is partly because the great extent of the sea territory of the Netherlands Indies makes it difficult to police this area effectively, but it is also because there are often no legal provisions in place to deal with violations of generally recognized principles.34 Reflecting its focus on security, the draft took the form of a revision of the Maritime Districts Ordinance of 1918, which had given the government wide powers to exclude foreign vessels from certain areas but had not delimited the “territorial waters” where it could exercise those powers. In an effort to give the proposed ordinance international legitimacy the memorandum explained that it conformed to principles that, so it claimed, had passed into international customary law as a result of the codification conference and would have been incorporated into a convention if it had not been for disagreement over the width of territorial waters. After the government made a number of amendments, most of which were to remove ambiguous wording, the draft ordinance passed into law in October 1935 as the Territorial Sea and Maritime Districts Ordinance.35

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Article 1, illustrated in figure 2.1, declared that the territorial sea “extends three sea miles from the low water line of islands or parts of islands belonging to the territory of the Netherlands Indies”. According to article 1 “islands” included rocks, reefs, and banks falling dry at low water that were no more than 3 miles from an island. This meant that such features were islands in their own right rather than extensions of the coast of an island. But it also meant that rocks, reefs, and banks falling dry at low water that were more than 3 miles from an island were not islands and therefore were not surrounded by territorial seas. Gone were those thousands of patches of “sea territory” that according to the 1927 ordinance had surrounded all the rocks, reefs, and banks of “the Netherlands Indies archipelago”. As well as providing a general definition of the territorial sea article 1 dealt with a number of special situations. The first two of these created areas of “internal waters [binnenwateren]”. This was of great importance because, as the commander of the Indies navy explained, the government had the same authority over internal waters as it did over its land territory.36

Figure 2.1 The conception of maritime territory in the Territorial Sea and Maritime Districts Ordinance of 1935

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Bays, inlets, and river mouths. Following well-established practice in the Indies and elsewhere, the ordinance stipulated that in the case of bays, inlets, and river mouths the territorial sea would be measured seaward of a straight line drawn across these openings at the first point at which it was possible to draw a line no more than 10 miles long. The waters on the landward side of this line had the status of internal waters. “A group of two or more islands”. According to article 1 the territorial sea of such groups was to be measured from straight lines drawn between the outermost points of the group where the distance between those points was no more than 6 miles. This formulation was consistent with the one that the preparatory committee had proposed to the codification conference as a basis of discussion. However, whereas the committee had proposed that the waters enclosed within the belt of territorial waters (as the territorial sea was then generally called) encircling the group would also have the status of territorial waters, article 1 gave the waters enclosed by the straight lines connecting the outermost islands the status of internal waters. This aspect of article 1 had been drafted with the threat of war firmly in mind. Officials had a vision of Japanese warships ambushing passing ships from hiding places in the Thousand Islands. This provision, they hoped, would make that less likely if war broke out, since the waters inside the baselines would be considered internal waters, which foreign ships had no right to enter. Because of the way article 1 had been crafted this provision concerning groups of islands applied not only to “islands” in the usual sense of the word but also to rocks, reefs, and banks falling dry at low water that were within 3 miles of an island. According to article 1 any such feature was regarded as an island in its own right. It was moreover less than 6 miles from another island. Therefore an island and a nearby rock, reef, or bank deemed to be an island together formed “a group of two or more islands”. Thus, for example, as illustrated in figure 2.1, an island and a reef lying less than 3 miles from that island formed a group of islands and as a consequence the waters between the reef and the island were internal waters. Straits connecting two open seas. The waters along the shores of a strait connecting two areas of the high seas were territorial sea. Because such straits were vital to international navigation this was true even if the islands forming the strait were less than 6 miles apart; these islands did not form “a group of two or more islands” and the waters between them were not internal waters. The question was what to do in the case of a strait which was no more than 6 miles wide at its two entrances but was wider than 6 miles at some points between those entrances. Were the areas lying more than 3 miles from either shore high seas or territorial sea? The position taken by the sub-committee established during the conference was that if the result of delimiting the territorial sea along the two shores was “to leave an area of high sea not exceeding two miles in breadth enclosed within the territorial sea, this area may be assimilated to the territorial sea”.37 The problem with this formulation from the point of view of Dutch officials was that it would

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create “enclaves” of high seas where the shores of the strait were more than eight miles apart. It would only be possible to reach those enclaves by passing through territorial sea. The resulting “partition” of the “water territory [watergebied]” of the strait, the commander observed, could lead to “undesirable complications”.38 In order to avoid this the ordinance stipulated that if both entrances of the strait were no more than 6 miles wide then all of the waters in the strait had the status of territorial sea regardless of the width of those sections of the strait lying between the two entrances. What all these provisions meant in practice is illustrated by figure 2.2, which shows the seas around Bangka and Belitung off the southeast coast of Sumatra. There were many areas that had the status of internal waters. Three of these—one on the north coast of Belitung, another on the east coast, and a third (the largest) on the south coast—were created by the rule concerning bays, while all the others resulted from applying the rule regarding groups of islands. Wherever there were straight baselines delimiting internal waters the territorial sea was measured from those baselines rather than from the low tide line. A notable feature is that there were two areas—the Clement and Stolize channels—that would have been internal waters in accordance with the rule on groups of islands but because of the provision on straits had the status of territorial sea instead. The overall effect of applying the provisions of the ordinance to this island-filled realm straddling a strait used for international navigation was to create a highly complex pattern of internal waters and territorial sea. All the waters seaward of the bands of territorial sea had the status of high seas. After setting out all these provisions, article 1 defined the words to be used for the various zones coming under the government’s jurisdiction. The “territorial sea” was, as described, the belt of waters surrounding islands and groups of islands, the “internal waters” were all waters—fresh as well as salt—on the landward side of such belts of territorial sea, and “the Netherlands Indies sea territory [zeegebied]” referred to all those parts of the sea—the territorial sea and those parts of bays, inlets, and river mouths landward of the territorial sea—under the government’s jurisdiction. This last term, which the article referred to as “territorial waters” as well, featured prominently in the remainder of the ordinance. Having delimited the maritime territory of the Netherlands Indies and given it a lexicon, the ordinance strengthened the restrictions on foreign vessels contained in the Maritime Districts Ordinance of 1918. Article 5, for example, forbade any vessel from making landfall or conducting hydrographic surveys not only in maritime districts but also anywhere else in the “Netherlands Indies sea territory” except with permission from the commander of the Indies navy. Similarly, article 6(1) prohibited all vessels except those permitted to fish that were actually engaged in fishing from dropping anchor anywhere in a maritime district unless they were compelled to do so by circumstances beyond their control or by considerations of safety. Except in cases where they had permission to operate in a particular

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area, or were compelled to do so for the reasons given in article 6(1), article 6(2) prohibited fishing vessels from dropping anchor anywhere in the sea territory of the Netherlands Indies except in a harbour or roads. Since people belonging to “the Native population properly speaking” were allowed to fish in maritime districts as well as elsewhere in the sea territory of the Netherlands Indies, these provisions were primarily aimed at Japanese fishing boats. The purpose of article 6, the commander explained, was “to combat the unlawful fishing…that is so extraordinarily frequent in Indies waters and is often combined with harassment [vexatie] of the people, beachcombing [strandroof], and so forth”.39 The maximum penalty for breaching either article 5 or article 6 was three months in prison or a fine of 500 guilders. The ordinance also brought existing laws that described the extent of the government’s jurisdiction in the sea in relation to particular activities into line with the new definition of the maritime territory of the Netherlands Indies. The pearling ordinance had applied to waters “within a distance of no more than three English sea miles of the coasts of the Netherlands Indies”, the Fisheries Ordinance to “the sea territory of the Netherlands Indies”, the whaling ordinance to waters out to “three sea miles…of the coasts”, and the criminal law to the area “within less than three English sea miles of the coasts”. All were replaced by the “Netherlands Indies sea territory” as defined in the new ordinance.40 The many decades when the government had comfortably described the extent of its jurisdiction in different ways in different laws had come to an end.

Figure 2.2 Maritime jurisdictions in the vicinity of Bangka and Belitung according to the Territorial Sea and Maritime Districts Ordinance

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The abandonment of “the sea territory of the Netherlands Indies” as defined in the Fisheries Ordinance demonstrated a change in the government’s outlook. At the heart of that conception of the area coming under the jurisdiction of the government had been the concept of “the Netherlands Indies archipelago”. Conceived in the Great War and given legal form in the Fisheries Ordinance, that vision of a whole transcending the bits and pieces making up the Indies lived on in the minds of Dutch officials41 but had now vanished from the statute books and so too had the intimation that the government’s jurisdiction encompassed everything within that archipelago. Now there was no archipelago but simply individual islands, each with its own territorial sea, and various groups of islands that were surrounded by a belt of territorial sea simply because each island on the outer edge of those groups was no more than 6 miles apart from one another island. Abandoning “the sea territory of the Netherlands Indies” as defined in the Fisheries Ordinance also reduced the area of sea falling explicitly under the government’s jurisdiction. The Territorial Sea and Maritime Districts Ordinance added to that area by declaring the waters within groups of islands to be internal waters in those special cases where each of the outermost islands was within 6 miles of another. More than offsetting this, however, the government now no longer claimed any jurisdiction in the waters surrounding the myriad of rocks, reefs, and banks falling dry at low water that were scattered about the seas of this part of the world except when those features were located within 3 miles of an island belonging to the Netherlands Indies (and as a result deemed to be islands themselves). This marked a retreat not only from the Fisheries Ordinance but also from the 1905 ordinance, which had regarded marine elevations out to 6 miles from the coast as forming part of the coastline. Officials thought this retreat to be necessary. After all, the main purpose of the Territorial Sea and Maritime Districts Ordinance was to delimit the maritime territory of the Netherlands Indies in a way that would be beyond challenge under international law. Nevertheless, a retreat it was. After submitting the draft ordinance to the Volksraad the government had encountered opposition from only one source.42 The Japanese consul-general in Batavia wrote to the government complaining that because of the restrictions on anchoring contained in article 6 the draft ordinance amounted to “a practical prohibition of the fishery of Japanese fishers”. The government secretary responded that the Japanese had no reason to be concerned, since article 6 permitted vessels to drop anchor when compelled to do so for safety reasons, but the consul-general then expressed his fear that article 6 would be applied so strictly that the fishermen would have their boats confiscated as, he claimed, had already happened on many occasions under the Fisheries Ordinance.43 As the correspondence dragged on officials became increasingly indignant at what they regarded as interference in the internal affairs of the Indies. For them the consul-general’s meddling was an ominous sign. “Japan is determined,” wrote the Netherlands ambassador to Tokyo, “to dominate all of East Asia, including the

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Netherlands Indies.”44 The future did indeed look worrying to the government at this time. Japan had seized Manchuria, Japan enjoyed a large trade surplus in relation to the Netherlands Indies, Japanese companies were making substantial inroads into the colony’s economy, and Japanese research vessels were busy surveying nearby seas for new fishery resources to exploit.45 The consul-general’s letters were one more indication of Japan’s intentions in the Indies. Eventually the government wrote to the consul-general asking that he refrain from any further interference in internal matters.46 The location of the maritime districts that government proclaimed over the next two years reflected its fears about the Japanese. The districts proclaimed in 1935 covered the “Netherlands Indies sea territory” not only in all the areas already listed in the 1918 ordinance (see figure 1.2) but also in the vicinity of the oil fields and port facilities at Balikpapan and Tarakan on the east coast of Borneo.47 In 1937, at the urging of the commander of the Indies navy, Vice Admiral H. Ferwerda, the government proclaimed maritime districts at two “crossroads [kruisgebied]” regarded as vital to the defence of the Indies: Ambon, where the navy was constructing a base for seaplanes, and Riau, which was taking on even greater strategic importance than before as the British built up their armed forces in nearby Singapore. In both cases the commander feared that foreign fishing boats—meaning Japanese vessels, since there were virtually no other foreign operators in these areas—would gather intelligence on behalf of the Japanese military.48 Proclaiming these maritime districts was one thing, but enforcing the many restrictions that applied to them was another. Soon after all these districts were proclaimed Queen Wilhelmina expressed concern that the Indies government might not have sufficient vessels to patrol these districts. Ferwerda’s initial responses gave the government little reassurance. He noted that except at Ambon and Riau the government was taking no special steps to maintain “the peace and security” of maritime districts. The one or two mine-layers operating in the Makassar Strait, for example, were available to patrol the districts at Tarakan and Balikpapan if needed.49 Even after the government brought a few more vessels into service many districts were patrolled only occasionally. For example, a vessel belonging to the province of Central Java visited the Karimunjawa Islands about once every two months.50 As the threat of war loomed, the government decided that it needed to revise the Territorial Sea and Maritime Districts Ordinance to take account of a number of developments. The result was the Territorial Sea and Maritime Districts Ordinance of August 1939.51 The revised ordinance banned unauthorized seaplanes from landing and taking off in maritime districts. It strengthened some of the restrictions on foreign vessels. And it removed a blanket ban on foreign military personnel entering maritime districts to make it possible for British military personnel to take “health trips” to Riau. However, it left article 1 of the 1935 ordinance exactly as it was. As it turned out, the Territorial Sea and Maritime Districts Ordinance of 1939 was the last ordinance issued before the outbreak of war in Europe to describe the

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nature and extent of the Netherlands Indies government’s jurisdiction over the seas adjacent to its land territory.

INDONESIA The Territorial Sea and Maritime Districts Ordinance, prepared by Dutch officials mainly with the interests of the Netherlands in mind and issued in the name of the queen of the Netherlands, defined the territorial sea of a Dutch colony, the Netherlands Indies. But by the time the Indies government had finally defined the territorial limits of this colony in 1935 thousands of people living within its boundaries had come to think of themselves as future citizens of an independent nation-state, one that they called Indonesia. The word Indonesia had been coined in 1850 by two Englishmen in Singapore, George Windsor Earl and James Logan. For them, and for the ethnographers who adopted the term in the late 1800s, the word was, as Logan put it, a “purely geographical term…which is merely a shorter synonym for the Indian islands or the Indian Archipelago”.52 It had no political meaning. The indigenous peoples of the rapidly forming Netherlands Indies tended to identify themselves as Javanese, Sundanese, Banjarese, Ambonese, and so forth, as when, for example, Kartini, the pioneer of education for women, spoke in 1902 of “we Javanese”.53 The idea that all the peoples living within the boundaries of the Netherlands Indies shared some sort of political identity first emerged in the early 1910s. “We now feel that we stand not against each other, we, Indiërs, not even next to each other, but in each other,” declared E.F.E. Douwes Dekker in 1913. “All at once everything has become so sharp and clear to us: We are brothers: we are one.”54 But rather than “Indiërs” those who shared this outlook soon came to call themselves “Indonesians” and the nation that they belonged to “Indonesia”. “Indonesia” had now become a political term. Soon many organizations incorporated “Indonesia” into their names: in 1922 the Indies Association (Indische Vereniging), made up of students studying in Holland, became the Indonesian Association (Perhimpunan Indonesia), and in 1924 the Indies Communist Union became the Indonesian Communist Party (Partai Komunis Indonesia (PKI)). In 1928 the young Dutch-educated architect Sukarno took the lead in forming the Indonesian National Association (Perserikatan Nasional Indonesia). By the time a congress of youth associations pledged their commitment a few months later to “One nation—Indonesia, one people—Indonesian, one language—Indonesian” the idea of Indonesia had been firmly established. But exactly what territory would be included in the future nation-state of Indonesia? According to Mohammad Hatta, who had been a leader of the Indonesian Association in Holland, Indonesia was “the present Netherlands-Indies”. But many nationalist leaders including Sukarno went one step

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further, declaring that in one form or another Indonesia had always been there—it was eternal. They harked back to the great Hindu-Buddhist realms of Srivijaya (the Sumatran-based polity that had dominated both sides of the Malacca Strait) and Majapahit (the Java-based empire which had claimed vassal states along the east coast of Sumatra, around the coasts of Borneo, on the Malay Peninsula, and as far east as the western tip of New Guinea) as earlier incarnations of Indonesia. For practical purposes, the future nation-state of Indonesia would take the borders of the Netherlands Indies as its basis, but Indonesia, in their mind, was not necessarily limited by these borders.55 The peoples coming to think of themselves as one people, Indonesians, held very different ideas from one another about possessing the sea and controlling its use.56 Thus, the Bugis and Makassan seafarers of southern Sulawesi regarded the sea and its riches as freely available to all. In 1615 the ruler of Makassar had famously complained of the Dutch attempt to ban trade with the Spice Islands by declaring that “God has made the earth and the sea, has divided the earth among mankind and given the sea in common. It is a thing unheard of that anyone should be forbidden to sail the seas.”57 This outlook was still thriving in the twentieth century as the traders and fishermen of southern Sulawesi sailed wherever they wished in pursuit of their livelihoods. In contrast, other peoples who depended on, or hoped to profit from, the resources in the waters adjacent to their villages had developed sophisticated notions of marine tenure, as we saw in chapter 1. Some groups, it would appear, were only just beginning to lay claim to these resources. For example, an official report on a dispute over access to the reefs of Nila in the southern Moluccas commented that the question of rights had previously been “of little importance, because the value of the lola [trochus shell] was unknown, but now it is a question of great weight”.58 Like governments and international lawyers of the time, many of the peoples of this island world distinguished between those areas freely open to all and those over which they believed they had certain rights. According to a 1920 account, “all the fisher folk of the Kangean Islands [to the east of Madura] regard the open sea as free; anyone, wherever they are from, can carry out any form of fishing”, but these same people chased away anyone intruding on “their reefs”.59 But, as in the wider world, the difference in outlook between those peoples who roamed the seas and those who focused on the resources near their shores was great. There is no evidence of how, if at all, these different strands of thought shaped the thinking of the leaders of the nationalist movement. Ratu Langie’s request that the government consider the possibility of extending territorial waters to 6 miles arose from the same pressures that often motivated moves to extend the state’s jurisdiction further into the sea. In any case, it would appear that for the most part nationalist leaders, faced as they were with more fundamental matters, gave this issue little thought in the 1930s. At the very least, however, their travels, even those transporting them into exile in remote parts of the Indies, were introducing them to

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more and more of the marine world lying between the islands of what they called Indonesia. “How beautiful this eastern part of our country is!” wrote Sutan Syahrir as he was being transported to Boven Digul in the depths of West New Guinea in 1935. “We had a chance to see quite a bit of it during the trip: along the coast of Celebes [Sulawesi] a splendidly blue sea, sometimes light and translucent like mother of pearl, sometimes a deep-dark blue, always purely beautiful….”60 These wonders too were part of Indonesia.

OF ROCKS, REEFS, AND BANKS, YET AGAIN After the outbreak of war in Europe the governments in The Hague and Batavia proclaimed the neutrality of the Netherlands and the Netherlands Indies. According to article 1 of Convention on the Rights and Duties of Neutral Powers in Naval War, “Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality”. With this and other articles in the convention in mind the government had already tried to delimit its territorial sea as precisely as possible. There was, however, still some confusion about rocks, reefs, and banks, as Admiral Ferwerda explained to the governor-general late in 1939. According to article 1 of the Territorial Sea and Maritime Districts Ordinance, rocks, reefs, and banks falling dry at low tide that were more than 3 miles from the coast of an island did not have their own territorial sea. But what happened, he asked, when lighthouses or other structures were built on such low-tide elevations? Since these structures stood above the surface of the water at all times, did not these structures transform the rocks, reefs, or banks on which they stood into islands having their own territorial sea? Since the codification conference had reached no agreement on this issue, Ferwerda suggested, the Netherlands government could consider the possibility of going back to its original conception of “islands”, namely, that “an island should be understood to be any natural or artificial elevation of the sea bottom above the surface of the sea at low tide”. He was quick to point out that according to this conception of islands even a rock that was below water at all times would have its own territorial sea if it was marked by a simple navigational aid such as a pole. The commander believed that such “unacceptable consequences” would be avoided if the government declared that only those structures that were under the government’s surveillance—demonstrated for example by flying the Dutch flag—would have their own territorial sea.61 Even this was unacceptable to the minister of foreign affairs, who believed that the government should conform to the preparatory committee’s basis of discussion on this issue, but perhaps because the committee had made no mention of artificial structures he argued that it would be acceptable for rocks, reefs, and banks on which the government had built some

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sort of structure to have their own territorial sea if the bottom of those structures was above the surface at low tide.62 This, it appears, was the position immediately accepted by the government in Batavia. This was the last time the Indies government puzzled over such esoteric matters. In May 1940, just three months after the minister gave his opinion on the question of rocks, reefs, and banks, Germany invaded the Netherlands; two years later, in February 1942, the Japanese navy defeated a combined force of Dutch, British, Australian, and US ships in the Battle of the Java Sea; a few weeks after that the governor-general surrendered to Japan; and soon the Dutch were marched off to concentration camps. For most Indonesians the next three and a half years were a time of extreme hardship but for many it was also a time of opportunity, as Indonesians filled positions previously held by the Dutch, and nationalist leaders including Sukarno and Hatta cooperated with the Japanese in order to promote their vision of an independent Indonesia. Questions of maritime jurisdiction were irrelevant now that Indonesia was under Japanese occupation. After the war and the revolution that followed, however, Indonesians would be giving even more attention to these questions than the Dutch had. They would do so as citizens of a newly independent nation-state.

CHAPTER 3

The declaration declaration The

In the law of the sea “the land dominates the sea”; with rare exceptions claims to jurisdiction over the sea are defined in relation to a state’s land territory. But exactly what lands, the members of the Committee for the Investigation of Independence asked themselves as they met between May and July 1945 following the Japanese promise to grant independence to Indonesia, would an independent Indonesia include? Speaking on 31 May, Muhammad Yamin argued that the committee should not feel bound by colonial boundaries but should instead think back to the great empires of Srivijaya and Majapahit. Indonesia, he insisted, should include the British protectorates and colonies on the Malay Peninsula, the British protectorates in northern Borneo, and Portuguese East Timor as well as all the territory of the Netherlands Indies. The following day Sukarno answered the question in this way: Even a child if he looks at a map of the world can point out that the Indonesian archipelago [kepulauan Indonesia] forms one unity. On the map there can be shown a unity of the group of islands between two great oceans the Pacific Ocean and the Indies Ocean and between two continents the continent of Asia and the continent of Australia. Even a child can tell that the islands of Java, Sumatra, Borneo, Celebes, Halmahera, the Lesser Sunda Islands, the Moluccas and the other small islands in between are one unity…. The whole archipelago ordained by God to be a single unity between two continents and two oceans—that is our country.1 During a speech in July endorsing Yamin’s conception of Indonesia’s territory, Sukarno argued that Indonesia should (contrary to geography as ordained by God) not include the Philippines, since “the Philippines is already independent”. At the same time, however, it should (again in violation of divine geography) include the Malay Peninsula, since a Malay nationalist leader had asked that Malaya be part of Indonesia and since command of both sides of the Malacca Strait was essential for Indonesia’s security.2 Despite objections from Mohammad Hatta, who among other concerns feared that any conception of Indonesia as extending 46

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beyond the territory of the Netherlands Indies was bound to encounter objections internationally, the committee adopted the Yamin-Sukarno version of Indonesia. Then early in August, as Japan was on the verge of surrender, the Japanese supreme commander for the Southern Regions informed Sukarno that Indonesia had to be confined to the borders of the Netherlands Indies—Indonesia could include everything within those borders but nothing more. While some Indonesians did not abandon dreams of a Greater Indonesia, for most Indonesian leaders the old Netherlands Indies—no more but also no less—defined the territorial scope of the new Indonesia. This was Indonesia. Indeed, so it soon seemed, this was the Indonesia that had always existed. The Committee for the Investigation of Independence appears to have considered the question of Indonesia’s maritime jurisdiction only very briefly. Yamin argued that the seas between the terrestrial components of Indonesia were as much a part of Indonesia as the land and that the principle of the freedom of the seas threatened Indonesia’s sovereignty and security, but he did not go on to propose that the government of an independent Indonesia lay some form of claim over all the waters between the islands. Instead, he suggested closing narrow straits (though not the Sunda, Lombok, and Malacca straits) to foreign ships unless they had been granted a permit or flew the flag of a country with which Indonesia had a treaty allowing that country’s ships to pass through. He also appears to have suggested a slight widening of the country’s territorial waters.3 That, it seems, was as far as the discussion went at this time. The constitution adopted the day after Sukarno and Hatta proclaimed the independence of the Republic of Indonesia on 17 August 1945 made no mention of jurisdiction over water aside from declaring in article 33(3) that “the land, the waters and the natural riches contained therein shall be controlled by the State and exploited to the greatest benefit of the people”. Over the next four years the energies of the leaders of the republic were consumed by the war against the Netherlands and by conflict among themselves about how to prosecute the war and what sort of country Indonesia should become. They made no attempt to extend the fledgling state’s territorial sea at this time. The more fundamental issue was whether the republic had a territorial sea at all. According to article 1 of the Linggajati agreement of March 1947, “the Netherlands Government recognizes the Government of the Republic of Indonesia as exercising de facto authority over Java, Madura and Sumatra”. The leaders of the republic appear to have assumed that this recognition automatically applied to the waters adjacent to those islands as well, and so too, it appears, did British officials,4 but according to the Dutch interpretation of the agreement the Netherlands retained sovereignty over these waters. As Dutch officials saw it, the Netherlands had in no way recognized the republic as a sovereign state; it had merely recognized the fact that the republican government exercised practical authority over certain islands. Since, according to the Dutch argument, the republic was not a state, it could not claim territorial waters. In fact, because territorial waters were one of

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the attributes of a sovereign state, they argued, adopting the same reasoning that their predecessors had applied to the self-governing territories at the turn of the century, the Netherlands could not recognize the republic as having territorial waters without implying that the republic existed as a state. In any case, the fact was, in their view, that the republic could never presume to have territorial waters when it had never exercised any authority over the waters adjacent to the territory under its control and, moreover, was “not in a position to put that authority into effect”.5 Instead, it was, according to the Dutch, the Netherlands that actually had authority over these waters. In short, the Dutch believed, the republic exercised de facto authority over some parts of the land territory of the Indies but the Netherlands had authority over the waters adjacent to that land. Armed with this argument, the Netherlands government regarded its blockade of various ports and efforts to intercept vessels “smuggling” rubber and other primary products from areas under republican control to British Malaya as entirely justified in international law. As the conflict dragged on and the republic fought for its very survival, republican leaders were in no position to challenge this argument. The tiny Indonesian navy was able to “cause confusion on the Dutch side” when forced to engage in battle and had some success in running the Dutch blockade,6 but for the most part the Netherlands controlled the sea. Only with the formal transfer of sovereignty in December 1949 did the Netherlands recognize Indonesia as a state having its own territorial sea. The leaders of this new state, however, appear to have given little or no attention to their jurisdiction over the waters between the islands making up Indonesia. Like the 1945 constitution, the provisional constitution of 1950, which established Indonesia as a parliamentary democracy, highlighted the state’s control over land and water but otherwise made no mention of the sea beyond stating in article 88 that the government would issue regulations concerning land, sea, and air communications. With the formal transfer of sovereignty all the laws of the Netherlands Indies including the Territorial Sea and Maritime Districts Ordinance of 1939 were to remain in place until such time as the government might amend or replace them. Indonesia began the 1950s in an enfeebled condition. The Japanese occupation and war with the Dutch had devastated the economy. The military, which had been forced to raise much of its own funds as best it could during the war, was highly fragmented. The navy and air force were extremely weak. Under the terms of the Round Table Agreement of 1949 the Indonesian government had agreed to take over the debts of the Netherlands Indies, to allow the large Dutch firms such as the KPM that had dominated the prewar economy to continue operating, and to retain the Java Bank as the nation’s central bank. The boom in commodity prices during the Korean War offered some respite but soon the boom was over. In addition, Indonesia was, as far as the Indonesian elite was concerned, territorially incomplete. Under pressure from the United States republican leaders had reluctantly agreed in 1949 that the Netherlands would retain control over West New Guinea for what

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they understood would be a fairly short period before it would be incorporated into Indonesia. Finally, on top of all this, there was deep, at times paralyzing, disagreement among Indonesians about fundamental questions such as whether liberal democracy was the most suitable form of government and what place Islam should have in governing the new republic. In large part because they were so conscious of Indonesia’s weakness the republic’s leaders, whatever their differences on other matters, displayed a heightened concern—indeed an obsession—with state sovereignty. In this respect Indonesia was very much like other newly independent states at this time. The declaration that came out of the Asian-African Conference held in Bandung in 1955 emphasized the respect for sovereignty and territorial integrity, the equality of states, non-interference in the affairs of other states, and the right of states to defend themselves.7 As host of the conference the Indonesian government was at the forefront of the pursuit of these principles in the conduct of international relations. By the time of the Bandung conference the government’s commitment to these principles was already contributing to a rethinking of the status of the waters lying between the islands of Indonesia. Also contributing to that rethinking were important developments in the law of the sea that had taken place while the republic was fighting for its very existence and trying to establish a viable nation-state.

THE TRUMAN PROCLAMATIONS AND BEYOND During the 1940s the sea became increasingly important as a source of vital resources. The growing demand for energy led to the invention of methods for extracting oil from deposits under the seabed, while the ever increasing demand for fish prompted the construction of more and more powerful fishing vessels that not only could catch greater quantities of fish but could also operate in more distant fishing grounds. These developments forced many governments to consider the question of their jurisdiction over the seabed and waters beyond their territorial seas. In September 1945, just a few weeks after the end of the war, President Truman issued two proclamations that were to have a great influence on the way governments regarded their jurisdiction over the sea. In the first, which he justified by the government’s need to regulate the development of offshore oil deposits, Truman proclaimed that the US government regarded the natural resources on and under the seabed of the continental shelf adjacent to its coasts as being “subject to its jurisdiction and control”. In the second, which he justified by the need to preserve fishery resources for future generations, he declared that the government was assuming the power to establish conservation zones to regulate the conduct of fishing by US nationals and foreign nationals who had entered into fishing arrangements with US nationals. US officials had

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little idea of the potential ramifications of these proclamations as far as other states were concerned. Although both proclamations emphasized that they in no way changed “the character of these waters as high seas”, the fact remained that the US government, after considering what best served the national interests of the US, had unilaterally extended its jurisdiction far out from its shores. If the US, the greatest power on earth, could do this, then why couldn’t other states? Moreover, while the second proclamation applied only to US nationals and foreign nationals in arrangements with US nationals (a State Department official later asked why a presidential proclamation had been needed in such a case8), it gave the impression that the US government had created a vast zone within which it regulated fishing generally. The Truman proclamations emboldened other states to extend their maritime jurisdictions. A few weeks later the Mexican government, which had been informed of the impending proclamations, followed the example of the first proclamation by asserting “jurisdiction, protection, and control over the continental shelf” adjacent to Mexico’s land territory. Then three states along the west coast of South America, where there was only a very narrow continental shelf but abundant living marine resources, went well beyond the scope of the first Truman proclamation. In June 1947 Chile claimed “national sovereignty over the continental shelf and adjacent seas to 200 marine miles” from the country’s land territory for the purpose of “reserving, protecting, and making use of all natural resources”. A few weeks later Peru made a similar 200-mile claim, as did Ecuador in 1951. In 1950 El Salvador went even further by stating in its constitution that the sea within 200 miles of the coast was part of the nation’s territory.9 Then in 1952 Chile, Ecuador, and Peru came together to issue a statement—the Santiago declaration—asserting “exclusive sovereignty and jurisdiction…over the sea which washes the coasts of their respective countries, to a minimum distance of 200 nautical miles” from those coasts. Included in the declaration was a statement permitting “innocent and inoffensive passage” in this zone.10 By implication the traditional freedoms of the high seas were not permitted. The US government viewed all these developments with deepening consternation but its repeated protests that the Latin Americans were acting contrary to international law fell on deaf ears. As the Latin Americans were making all these claims, an event that had potentially enormous implications for Indonesia had taken place in The Hague when the International Court of Justice handed down its ruling in the Anglo-Norwegian Fisheries case in December 1951. This case concerned the legality of the straight baselines joining the outermost points of the skjaergaard that the Norwegian government had used to delimit its territorial waters in that region. Under Norwegian law, as we have noted, the country’s territorial sea extended 4 miles seaward from these baselines and all the waters within the baselines were internal waters. The UK government conceded Norway’s right to have a territorial sea that was 4 miles wide but it challenged its right to measure that territorial sea

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from straight baselines—the longest of which according to a 1935 decree was 44 miles long—rather than from the low-tide line of the mainland and each and every island. The British argued that the practice of measuring the territorial sea from the low-water mark was a long-established principle in international law and the Norwegian government therefore had to justify its deviation from that principle. In response the Norwegian government declared that the people living along the barren northern coast of Norway had historic ties with the waters in question and depended on the rich fishery resources of those waters for their livelihoods. The government also argued that measuring territorial waters from the low-water mark was not established in international law and that the burden lay with the British to prove that Norway had violated some principle in international law. In the end, the court decided in favour of Norway. The court, so the majority decision asserted, was persuaded that Norwegians had a close historical and economic connection with the waters concerned and that this close connection was relevant. The court also declared that the principle of measuring the territorial sea from the low-water line was not an established principle in international law. And it stated that the baselines had been in place many years before the British government had formally protested to the Norwegian government. For all these reasons, the court ruled that the method by which the Norwegian government had drawn its baselines was “not contrary to international law”.11 What, many governments and international lawyers wondered, was the significance of this ruling? On the one hand, the court had emphasized those geographical, historical, and economic circumstances that had made Norway’s claim so special. On the other, however, it seemed to suggest that straight baselines drawn in “the general direction of the coast” were valid even if there were no such special circumstances. Moreover, even though the court observed that while all territorial claims are necessarily unilateral they always had an international aspect, it seemed to have given more weight to the interests of the state making the claim than to the interests of those states affected by it.12 For some this was a matter of deep concern. One British authority feared that any weakening of “the consensual basis of maritime rights” would lead to “a disorderly riot of unilateral claims”.13 Others, however, worried little about such consequences. Among them was a California congressman, Sam Yorty, who in February 1952 introduced a resolution proposing that the US declare “its exclusive right and jurisdiction…with respect to all inland or internal waters within boundaries established as far seaward along the coasts of the continental United States (including Alaska) as is permissible” under the rules set out in the ICJ’s judgement.14 Yorty’s initiative alarmed the US administration. If the US were to take such a step then almost certainly many other states would soon adopt similar legislation. In response to a letter from the State Department asking for the Department of Defense’s reaction to the resolution the secretary of the navy declared in June 1952 that “any

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action which tends to restrict free navigation of the high seas by recognizing sovereignty over territorial waters in excess of three miles is contrary to United States security interest”.15 In order to demonstrate the dire consequences of states following Norway’s lead by applying straight baselines he asked his staff to prepare maps showing examples of areas that might be incorporated into states using such baselines. One of these maps showed how the Indonesian government might enclose the waters off the west coast of Sumatra by applying a system of straight baselines running along the outermost points of the chain of islands lying roughly parallel to the coast.16 This, it seems, was the worst that US officials could imagine at this time. Around the time US and other officials were studying the implications of the ICJ’s ruling the Philippines government took an extraordinary step. This step concerned the lines set out in the Treaty of Paris of 1898 (see figure 3.1). Up to this point these lines had been regarded as allocation lines: they simply provided a convenient way of indicating which islands Spain was ceding to the United States. There was no implication that the waters within those lines (except for a territorial sea around individual islands) had belonged to Spain and that it had transferred sovereignty over those waters to the US. In April 1952, however, the Australian legation in Manila learned that the Philippines government was considering a suggestion from its Department of Foreign Affairs that “Philippine territorial waters should be those waters covered by boundaries drawn in the…Treaty of Paris which defined Philippine territory”.17 The government had apparently decided to go ahead with this suggestion by the time Philippine authorities intercepted a New Zealand frigate, the Hawea, off the western tip of Mindanao in September as it was sailing to Korea. The New Zealand government protested that the ship had been 5.5 miles from the nearest land at the time of the incident and that the commanding officer had “exercised particular care when proceeding up the coast not to enter the territorial waters of the Philippines”.18 The Philippines then replied that at the time of the incident the Hawea had been “well within the inland waters of the Philippines” since it had been “inside the treaty limits of its national territory”.19 When New Zealand refused to accept this explanation the Philippines provided a more elaborate statement of its position in November 1953: …all waters around, between and connecting the different islands belonging to the Philippine Archipelago, irrespective of their width or dimensions, are necessary appurtenances of its land and territory, forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines. All other water areas embraced within the imaginary lines described in the Treaty of Paris of…1898…are considered as maritime territorial waters of the Philippines for purposes of protection of our fishing rights,

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conservation of our fish resources, enforcement of revenue and anti-smuggling laws, defence and security, etc.20 There was no indication of precisely how the government would delimit “the national or inland waters” lying between and around the islands. In particular, the statement did not refer to straight baselines of the sort the

Figure 3.1 The treaty limits of the Philippines

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ICJ had upheld in the Anglo-Norwegian Fisheries case, suggesting that the statement was not modeled on the court’s ruling. What is certain, however, is that the government now regarded all the waters between the islands of the Philippines as “national or inland waters”, where presumably it exercised the same jurisdiction as it did over its land territory. Another notable aspect of the statement was the concept of “maritime territorial waters”. On the one hand the government appeared to be claiming jurisdiction only over specific activities. On the other, however, the inclusion of so many activities and the addition of “etc.” suggested that it in fact regarded those waters as having the status of territorial sea. Since there was no indication of how the government would delimit “national or inland waters”, it was not clear just how extensive the “maritime territorial waters” lying beyond them were. However, these waters obviously encompassed a vast area of ocean, since the treaty limits were in some places more than two hundred miles from the nearest island belonging to the Philippines. Fully aware of the implications of the statement, the New Zealand government immediately informed the Philippines that “it is unable to accept the views of the Philippines Government on this issue”.21 At some point it appears that the UK government did the same, while the Australian government apparently remained silent, believing that “it might be best not to approach the Philippines Government direct, as we do not want to induce them to make an approach to us on this matter”.22 There it appears the matter rested for the time being. *** Already in 1951, even before such dramatic moves as the Santiago declaration and the Philippines statement, the State Department’s adviser on geography had observed that “Never have national claims in adjacent seas been so numerous, so varied, or so inconsistent”.23 Precisely for this reason the International Law Commission, which the UN General Assembly had established for the “promotion of the progressive development of international law and its codification”, began considering the international law related to the high seas in 1949 and in 1951 it began examining the law concerning the territorial sea as well. The aim was to complete the work left unfinished by the 1930 codification conference and to prepare draft conventions that would form the basis for discussion at a UN-sponsored conference on the law of the sea to be held once the commission had finished its deliberations. At this moment when the ILC was trying to bring some order to the chaos that seemed to prevail in the law of the sea Indonesian officials were just beginning to turn their attention to many of the same questions related to maritime jurisdiction that their counterparts in many other countries had been considering since 1945.

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QUESTIONING THE TERRITORIAL SEA AND MARITIME DISTRICTS ORDINANCE Australian records suggest that Indonesian officials first began to give thought to these questions late in 1951 when an Indonesian cabinet minister, Djuanda Kartawidjaja, led a mission to Japan to discuss war reparations and other matters related to relations between Indonesia and Japan. One of those other matters was the impending return of Japanese fishing vessels to the archipelago. Immediately after the war Japanese fishing vessels had been prevented from venturing far from Japan by a line, known as the MacArthur Line, imposed by the Supreme Commander of the Allied Powers that those vessels were not allowed to cross. The line was gradually extended further and further from Japan. At the time of the Djuanda mission Southeast Asia remained out of bounds but the line was expected to be lifted altogether soon. The imminent return of Japanese fishermen was a worrying prospect for Indonesian officials in view of all the problems they had caused in the prewar period. During the discussions in Tokyo the Indonesians apparently told the Japanese that they were considering “defining territorial waters as the waters between the islands with a sixty mile limit”24 but the Japanese said that Japan would be unwilling to recognize such a limit. Sometime in 1952 Indonesian officials began considering the possibility of declaring a continental shelf “around the coasts of the archipelago”.25 The most immediate purpose of such a declaration would have been to prevent Japanese fishermen, who returned to the waters between Indonesia’s islands soon after the MacArthur Line was lifted in April of that year, from exploiting the rich oyster beds in eastern Indonesia. In September 1953 the idea of declaring a continental shelf received a boost when the Australian government, having broken off negotiations with Japan over the regulation of Japanese pearl-shellers off the north coast of Australia, claimed sovereign rights over its continental shelf out to a depth of 100 fathoms (182 metres). The Australians quietly encouraged the Indonesians to take the same step, partly, it appears, in the hope that the Indonesians would then feel no need to make any claim such as to a broader territorial sea that might threaten freedom of navigation. By the middle of October “informed circles” in Jakarta had told a reporter “that Indonesia will announce that the Indonesian sovereignty also includes all the continental shelves surrounding the Indonesian islands”.26 But Indonesian officials were looking for a broader form of jurisdiction than a continental shelf declaration could provide, at least on its own. Such a declaration would, among other deficiencies, not give the government any jurisdiction over the Japanese fishing vessels that were by this time exploiting the abundant tuna stocks of the Banda Sea. Thus, when the foreign minister spoke with the Australian chargé d’affaires in November 1953 he was (so the chargé reported) “delighted to discover that the Java Sea generally lies at the 100 fathom level, but thought that, with respect to the Banda Sea and the Celebes Sea some principle other

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than the Continental Shelf might need to be adopted”.27 Indeed, officials appear to have already had some idea of what that principle might be, for the chargé had recently learned from a Foreign Ministry official that Indonesia was considering “the adoption of a coast to coast line which would in effect make” areas such as the Banda Sea “closed waters for all purposes”.28 The reference to “a coast to coast line” almost certainly indicates that the government was considering some sort of application of the ICJ’s ruling in the Anglo-Norwegian Fisheries case. The Australian government was aware that at the very least Indonesians believed that they had a say in what went on in the seas between their islands. Precisely for this reason the Australian minister for external affairs strenuously opposed a proposal by the minister of defence to conduct a large-scale naval and air exercise with US, Dutch, and French forces in the Banda and Arafura seas under the direction of the Australian navy and air force. Indonesians, he argued, “might well see in the manoeuvres some hostile significance and this could play into the hands of extremist elements” in the elections expected in 1955.29 We have almost no record of Indonesian thinking regarding the government’s maritime jurisdiction during the next couple of years. In May 1955 cabinet discussed this issue following memorandums from the defence and justice ministers but we know nothing about the contents of the memorandums or the nature of the discussion. Over the next fifteen months the ministers of defence, finance, and agriculture (which included fisheries) and the police bureau all submitted memorandums concerning maritime jurisdiction,30 but again there is no record of their contents. Then, in September 1956, the issue suddenly surfaced when the Southeast Asia Treaty Organization announced that it would be conducting naval and air exercises. There was some mystery about where these exercises would be conducted. Indonesians were particularly concerned whether they would take place in the Java Sea. “From the perspective of geography,” the navy’s chief of staff, Admiral Subiyakto, told reporters, the Java Sea “is inside the scope [lingkungan] of our territory and if seen from the perspective of our national sovereignty it is extremely difficult to permit or just be silent regarding the use of the Java Sea for a war exercise”.31 In the end it appears that although the ships did not conduct exercises in the Java Sea they did pass through it on their way to the South China Sea.32 “I do not see why they should not operate in the Java Sea,” a Royal Navy officer told the Straits Times. “It is in international waters and we did not enter Indonesia’s territorial waters.”33 And the commander of the US Pacific Fleet took the view that “Indonesia would have to get used to the idea that the Java Sea was not an Indonesian lake”.34 The government formally protested to the US about the exercise, apparently because one phase of it was held close to Indonesian islands off the northwest coast of Borneo. Thinking that this was merely a pro forma protest, the US government did not bother to reply.35 The SEATO exercise brought back into the open the question of whether the government should abandon the 3-mile limit. When speaking to the press

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Subiyakto had commented that the 3-mile limit was not appropriate “for current conditions” and noted that many states had claimed broader territorial seas. He remarked that Indonesia had been considering doing the same but had not done so yet because of concerns about “our capability [kemampuan kita]”.36 One important figure pushing the government to make a bold assertion of its jurisdiction over the sea between Indonesia’s islands was Muhammad Yamin, now a member of parliament. Speaking on the morning of 17 October, he found the government’s adherence to the 3-mile limit “unaccountable”. According to him the US was among many countries that had extended their territorial waters and that Indonesia should do the same. If Indonesia were to adopt what he called “the current international views” then “the SEATO manoeuvres on the Java Sea would…not be held without our prior consent as the Java Sea would be regarded as belonging to our territorial waters”.37 The government had apparently already decided to act by the time Yamin spoke in parliament. Sometime on 17 October 1956 the prime minister, Ali Sastroamijoyo, established an interdepartmental committee with the broad brief of “drafting a law concerning Indonesia’s territorial sea and maritime area”. In addition to its head, Lt. Colonel Pirngadi, the chief of naval operations, there were thirteen members drawn from the ministries of defence, justice, foreign affairs, and internal affairs, departments dealing with shipping, fisheries, and taxation, and the navy and marine police. According to the prime minister’s decision the purpose for setting up the committee was to make changes to the Territorial Sea and Maritime Districts Ordinance “in accordance with the current situation”.38

PRECEDENTS At the time the interdepartmental committee was established it had before it a treasure trove of precedents that it could, depending on how it interpreted them and how bold it was prepared to be, call upon to redefine the government’s jurisdiction over the seas between the islands of Indonesia. Three broad kinds of precedents were of potentially great importance to the committee’s deliberations: Continental shelf claims. Following the example set by the first Truman proclamation, many states had made continental shelf declarations. These differed from one another in how they defined the outer limit of the continental shelf—whether by depth, the morphology of the seabed, or a particular distance—and in the nature of the jurisdiction asserted. But there was a consensus that at least in principle states had the right to make such claims. Claims to territorial seas broader than 3 miles. In 1956 most states still claimed 3 miles but the number claiming broader territorial seas had been steadily increasing. Between October 1951 and August 1956 Israel and India

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claimed 6 miles and Bulgaria, Ethiopia, Rumania, and Venezuela all claimed 12 miles. And, while stopping short of abandoning its 3-mile territorial sea, the Republic of Korea claimed “‘national sovereignty’ over a zone varying in width from twenty to 200 miles in breadth for protection, conservation, and utilization of the resources of the sea”.39 Claims to the waters within and around groups of islands. Under the Territorial Sea and Maritime Districts Ordinance Indonesia already drew straight baselines around groups of islands when the outer islands in those groups were no more than 6 miles apart, measured the territorial sea around those groups out from these baselines, and regarded the waters inside the baselines as internal waters. By 1956 a number of states had made far bolder claims, of which three deserve special mention. First, under a 1951 decree Ecuador regarded the Galapagos Islands as forming a unit and drew straight baselines between “the most salient points of the outermost islands” of the archipelago. The shortest of the seven baselines was 32 miles long, while the longest was 147 miles. Extending seaward from these baselines was a 12-mile-wide territorial sea.40 Second, Iceland’s government, following the ICJ’s ruling in the Anglo-Norwegian Fisheries case, drew “a consecutive line of straight baselines all along the coast from the outermost points” of the archipelago made up of the main island of Iceland and the numerous nearby islands. Extending seaward from these baselines was a 4-mile-wide territorial sea; the waters inside these baselines were internal waters.41 And, third, there was the precedent set by Indonesia’s neighbour, the Philippines. The Philippines government made its claim known to the world at large for the first time in a note verbale submitted to the UN secretary-general in March 1955.42 For the most part this note followed the wording of the Philippines response to New Zealand’s protest in 1954. It did, however, drop any reference to the lines set out in the Treaty of Paris as “imaginary”, expand the list of activities over which the government exercised jurisdiction in its “maritime territorial waters”, and add that the government exercised that jurisdiction “without prejudice to the exercise by friendly foreign vessels of the right of innocent passage over those waters”. It appears that up to the time the interdepartmental committee was established no government had lodged a protest against the note verbale. These then were some of the precedents available to the committee. By 1956 there appears to have been much less interest in making a continental shelf claim than there had been in 1953, presumably because of the limited nature of the jurisdiction it would have given Indonesia. The idea of claiming a broader territorial sea was still very much alive. Shortly after the committee was appointed a senior fisheries officer who was concerned that Japanese fishermen were exploiting the abundant fish resources in “Indonesian waters” that properly belonged to Indonesians proposed that

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the country’s territorial waters be extended to 60 miles.43 And the “coast to coast” idea was also still alive, though in what form we do not know.

THE INTERNATIONAL LAW COMMISSION AND THE SIXTH COMMITTEE Up to this time the Indonesian government had taken no part in the work of the ILC. It made no submission to the ILC during the early stages of its work when the commission invited governments to give their views on the issues it was examining nor did it comment on draft articles on the law of the sea circulated by the ILC in 1955. Shortly after it established the interdepartmental committee, however, the government finally did turn its attention to the work of the ILC when the commission released its final draft articles and an accompanying commentary.44 Several of the draft articles were of great relevance to the issues the government was facing, and that the interdepartmental committee was just beginning to consider: Article 3. The ILC had aimed to express all the draft articles in treaty language. Thus, for example, article 1 proclaimed that “the sovereignty of a State extends to a belt of sea adjacent to its coast, described as the territorial sea”. But the commission failed to agree on the wording of the article dealing with the breadth of the territorial sea, article 3. Thus, article 3 merely contained the statement that the commission “considers that international law does not permit an extension of the territorial sea beyond twelve miles”. The commission did not intend this wording to mean that any width up to 12 miles was permissible but only that any extension beyond that distance was not. It added the comment that the breadth, whatever it was, “should be fixed by an international conference”. Article 5. Article 5(1) allowed a state to draw straight baselines, from which it would measure its territorial sea, when “the coast is deeply indented or cut into or…there are islands in its immediate vicinity”. It imposed no limit on the length of these straight baselines but did stipulate that they “not depart to any appreciable extent from the general direction of the coast” and that “the sea areas lying within the lines be sufficiently closely linked to the land domain to be subject to the régime of internal waters”. A state could, however, take account, “where necessary, of economic interests peculiar to a region, the reality of which was clearly evidenced by long usage”. As the ILC interpreted article 5(1), this formulation embodied a two-step process: first, geographical reality determined whether it was possible to apply a system of straight baselines and, second, economic interests exercised over a long period determined exactly how those lines would be drawn. Article 5(3) dealt with the question of passage through

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waters that had previously been part of a state’s territorial sea or the high seas but would now, as a result of applying straight baselines in accordance with article 5(1), be part of the internal waters of a state. According to this article ships would have the right of innocent passage “where the waters have normally been used for international traffic”. This in effect established a new kind of internal waters, namely, internal waters where there was a right of innocent passage as distinct from internal waters where there was no such right. A notable feature of article 5 as a whole was that it was cast with “coastal” archipelagos such as the skjaergaard in mind. There was no mention of applying straight baselines to groups of islands. Article 10. This article simply stated that “Every island has its own territorial sea” and defined an island as an area of land surrounded by water and permanently above the high-water mark. During its discussion on this article the commission touched on the related question of groups of islands.45 No one objected in principle to the possibility of establishing a special regime for such groups. Even the great champion of the British view of the law of the sea, Sir Gerald Fitzmaurice, suggested that such a regime “might be established for cases where islands were sufficiently closely grouped to constitute both a geographical and a political unity”. He insisted, however, that “a maximum distance between the islands and also between the interior lines would have to be established” and that the waters inside the baselines be regarded as territorial sea (where there would be the right of innocent passage) rather than internal waters (where there would be no such right). Two members addressed the special case of states made up entirely of islands. A.E.F. Sandström of Sweden suggested that “a more liberal use of straight baselines might be justified in certain cases” but emphasized that “obviously” this could not be done in the case of states “with enormous distances between their islands, such as Indonesia”. A Czech member, Jaroslav Zourek, argued that it would be unfair to states made up entirely of islands if the commission allowed the drawing of straight baselines in the case of “off-shore” islands (such as the skjaergaard) but did not have a similar clause in the case of “archipelagic States”, for otherwise “such States would never have any internal waters”. In the end, the article said nothing about groups of islands. The commentary explained that the commission had been unable to make a proposal concerning groups of islands because of disagreement over the width of the territorial sea and a “lack of technical information” on archipelagos but expressed the hope that this question would be addressed at an international conference. The commentary added that in the view of the commission article 5, the article dealing with straight baselines, “may be applicable to groups of islands lying off the coast” but said nothing

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about just how it might be applied. A notable aspect of the commission’s discussion was Zourek’s introduction of the concept of “archipelagic States”. Suddenly there was a term for states such as Indonesia made up entirely of islands. Whether anyone would embrace this term remained to be seen. Article 15. Article 15(1) gave “ships of all States…the right of innocent passage through the territorial sea”. According to article 15(3), which was modeled on a rule proposed by the codification conference, “Passage is innocent so long as a ship does not use the territorial sea for committing any acts prejudicial to the security of the coastal State or contrary to the present rules, or to other rules of international law”. Article 15(5) required submarines “to navigate on the surface”. Though this was not stated explicitly, article 15 would apply not only to the territorial sea but also to those internal waters that according to article 5(3) were subject to the innocent passage regime. Article 17. This article gave coastal states certain rights of protection. Specifically, it gave a coastal state the right to take “necessary steps in its territorial sea to protect itself against any act prejudicial to its security” and “to suspend temporarily in definite areas of its territorial sea the exercise of the right of passage” when it deemed such a suspension “essential for the protection” of its right to protect itself. Importantly, however, it did not allow the state to suspend the right of passage “through straits normally used for international navigation between two parts of the high seas”. This was the only reference to passage through straits in the draft articles. Article 24. This article gave coastal states the right to “make the passage of warships through the territorial sea subject to previous authorization or notification”. Originally the commission had taken the view that warships should be able to pass through the territorial sea without having to obtain the coastal state’s permission or give prior notification but in response to the views of several governments it inserted this requirement. When the maritime powers then strongly objected to what they regarded as a severe impingement on the freedom of the seas, the commission reconsidered its position but in the end decided to retain the requirement. It went out of its way, however, to emphasize that since under article 17 coastal states could not place any restrictions on the innocent passage of warships through straits used for international navigation article 24 should not apply to such straits. Article 67, 68, and 69. These were the first three articles in a section dealing with the continental shelf. Article 67 defined the continental shelf as “the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres (approximately 100 fathoms) or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources

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of the said areas”. Article 68 proclaimed that a coastal state “exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources”. An implication of these two articles was that states would be able to claim sovereign rights over more and more of the seabed as it became possible to exploit resources in deeper and deeper waters. Article 69 placed a clear limit on the extent of the state’s jurisdiction over its continental shelf. “The rights of the coastal State over the continental shelf,” it stated, “do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters.” Thus, the coastal state would have no special rights over the fishery resources in the waters above its continental shelf, while foreign ships and aircraft would enjoy the same freedom of movement in this area as they did elsewhere on the high seas. Perhaps the most conspicuous feature of these articles was that for the most part they consolidated (or in the case of the breadth of the territorial sea partially consolidated) those developments about which there was either general agreement or grudging acceptance but ignored those that that had pushed the prevailing law of the sea to the extremes. Thus, for example, there was no recognition of the 200-mile claims of the Latin Americans or the (from most perspectives) outlandish claim made by the Philippines. The commission had, however, stuck its neck out in putting forward article 24; even with the assurance concerning straits used for international navigation the maritime powers could be expected to try to have it deleted. As with so much else, we have no record of the Indonesian government’s initial reaction to the draft articles but we do know that it did study them enough to instruct Indonesia’s representative in the Sixth Committee of the UN General Assembly what to say when the committee began discussing the ILC’s report on 28 November. The primary purpose of the committee’s discussions was to decide whether to recommend that the UN go ahead with plans to convene a conference on the law of the sea, but many representatives also took the opportunity to comment on the draft articles themselves. One of the most important statements came from the UK representative, Sir Gerald Fitzmaurice. Appealing to governments to base their positions on “an objective consideration of the technical elements” rather than “political, ideological or emotional factors”, he mounted a long defence of the 3-mile limit. States were, he said, deluding themselves if they believed that broader territorial seas would, in this age of ballistic missiles, improve their security. Moreover, there was no point in claiming a broader territorial sea for security reasons when the government lacked the means to control what went on in those waters.46 Among those to respond was the Indonesian representative, Nugroho. Speaking on 5 December, Nugroho reserved his government’s position on the breadth of the territorial sea but aligned Indonesia with “the views of those

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distinguished representatives who have so forcefully and bravely advocated…the expansion of the breadth of the territorial sea beyond the three-mile limit”. Those views, he added, could not be easily dismissed “as merely ideological, political or even emotional”. Although a broader territorial sea could not ensure the security of a state, he continued, it certainly would give it more protection than the 3-mile limit did. The 3-mile limit was now “obsolete”.47 However divergent the views of member states, the Sixth Committee readily agreed on the desirability of convening a conference on the law of the sea. Acting on the committee’s recommendation, the UN General Assembly resolved in February 1957 to begin planning for a conference to begin in March 1958.

THE INTERDEPARTMENTAL COMMITTEE Due in large part to several changes in its membership as well perhaps as the magnitude of the issues it had to consider, the interdepartmental committee moved at a very slow pace. It established a section to deal with “technical” matters in January 1957 and another one to deal with legal issues only in April. In the meantime, there had been a dramatic development in Indonesia that could, depending on how it viewed it, have a direct bearing on the committee’s deliberations. During the 1950s politicians, army officers, and the public in regions outside Java had become increasingly dissatisfied with the government in Jakarta. They watched with a sense of foreboding the growing popularity of the PKI in Java—it had made a spectacular impression in the 1955 elections—and Sukarno’s apparent support of the party. And they complained bitterly about the government’s attempts to regulate foreign exchange transactions in a way that gave Java cheap imports but greatly reduced the earnings of, for example, producers of rubber in Sumatra and copra in Sulawesi. Because of the ever-widening gap between the official exchange rate and the value of the rupiah outside Indonesia, smuggling, already a problem for the government for many years, became more and more common during this period. In 1956 it was estimated that about half of the rubber imported into Malaya from Indonesia had been smuggled across the Malacca Strait.48 By this time the biggest smugglers were working closely with regional military commanders, who saw the income from smuggling as a way of increasing their independence from the high command in Jakarta and building the loyalty of their troops. The gulf between the regions and Java widened when Hatta, a Sumatran, resigned as vice president in December 1956. In January 1957 Masyumi, an Islamic party that had its main support in Sumatra, withdrew from the government of Ali Sastroamijoyo, and by early March several regional army commanders had, without authorization from either the government or the military command in Jakarta, declared martial law over their regions and begun to govern these regions virtually autonomously. These commanders did not see

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themselves as rebelling against the nation-state of Indonesia. Indeed, they believed that they were preserving the true values of the revolution and helping to save the state in a time of crisis. But for the government their unilateral declarations of martial law posed a grave threat to the unity of Indonesia as well as to the authority of the government itself. Following Ali’s resignation as Prime Minister on 14 March, President Sukarno, urged on by the army chief of staff, General Nasution, declared martial law over the whole country. Then Sukarno, who had recently been speaking about the possibility of Indonesia becoming a “guided democracy”, appointed a “business cabinet” headed by the highly respected non-party politician Djuanda Kartawidjaja, who by this time had held several ministerial posts. Once in office Djuanda tried to keep the country together. Most notably, in September 1957 he held a National Conference where those attending, including several regional commanders, expressed their dissatisfaction with the current state of affairs. But the conference provided no clear direction on what should be done about the nation’s problems. In any case, the regional commanders and their civilian allies had become entrenched in their opposition to the government in Jakarta following the triumph of the PKI in provincial elections in Java in August. By October they had convinced themselves that they would have the support of the US government in any conflict with Jakarta.49 In this politically tumultuous atmosphere there was some public discussion of the government’s maritime jurisdiction. This discussion did not involve the interdepartmental committee, which continued to meet out of the spotlight, but took place in the Constituent Assembly established to draft a constitution to replace the provisional 1950 constitution. Early in September a committee examining the question of how to define “Indonesia’s national territory” recommended that it include “the seas and waters [lautan-perairan] between our islands”.50 After considering the committee’s report the preparatory committee, which had commissioned the report, concluded that the assembly had to consider whether “struggling to have the seas and waters between our islands included in Indonesia’s national territory” should become government policy.51 When the full assembly debated the territorial question in early November most of the discussion was devoted to the problem of defining precisely which islands and parts of islands made up Indonesia. Was it, for example, simply the territory of the former Netherlands Indies or the territory of the Netherlands Indies at a particular date? Because of rapidly increasing Indonesian impatience with the refusal of the Netherlands to discuss the “return” of West Irian (West New Guinea) to Indonesia there was also a great deal of discussion on whether any definition of Indonesia’s territory should refer specifically to West Irian. But three speakers addressed the question of the waters between Indonesia’s islands. Two enthusiastically endorsed the idea of including those waters in the country’s national territory. A PKI delegate believed such a step was essential in view of “our security interests and national sovereignty”; he reminded the assembly of “SEATO exercises in the Java

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Sea”.52 Also advocating the idea was a Parkindo (Christian Party) delegate. “Our security interests and independence cannot be sacrificed to the interests of other people”, he said, referring to those states upholding the freedom of the seas. “Is this [incorporating the waters between the islands] not a unilateral step? Perhaps! So too was our [independence] proclamation!” “Certain people,” he continued, “say that behind such a step we must have the force needed to defend it if we are not to be considered like Don Quixote.” But he dismissed such fears as “a different matter” to be resolved as the nation developed.53 The third delegate to address the question of claiming sovereignty over the waters between the islands was Djamaluddin gelar Datuk Singo Mangkuto of Masyumi. His party was staunchly opposed to abandoning the 3-mile limit, at least in the near future. He argued that that limit was still consistent with international law and pointed out that Indonesia indeed did lack the means to defend a broader claim which almost certainly would provoke a strong reaction from other countries. Unlike the PKI delegate Djamaluddin regarded the freedom of the seas not as a piece of imperialist ideology but as a principle of great importance to all states.54 At least within the assembly Djamaluddin’s position won the day. When he proposed that all the questions related to waters, airspace, and the continental shelf be subject to further study by the preparatory committee, the assembly agreed to adopt this course of action without taking a vote.55 That was the end of the matter as far as the assembly was concerned. The delegates had what they regarded as far weightier questions demanding resolution such as the place of Islam in the state. It appears, however, that there was at least a consensus on the desirability of making a continental shelf declaration at some stage. Both the Parkindo delegate and Djamaluddin had spoken in favour of this—the former as a step the government would take in addition to an assertion of sovereignty over the waters between the islands, the latter as a step the government would take instead of such a claim to those waters. In the midst of these discussions in the Constituent Assembly the interdepartmental committee continued its deliberations but apparently had made no final decisions on its recommendations. In October, as the committee showed no signs of concluding its work, the minister of veteran affairs, Chairul Saleh, who was well known for his nationalist zeal, took an extraordinary step. Sometime in that month he complained to Mochtar Kusumaatmadja, a young member of the interdepartmental committee whose wife was related to Chairul, that the committee was going about its work much too slowly and timidly. Mochtar had been appointed to the committee on 1 August because of his expertise in international law; he had specialized in international law at the University of Indonesia and had gone on to receive an LLM from Yale Law School, where one of those influencing his view of the law was Myres McDougal, whose course on international law included an examination of the Anglo-Norwegian Fisheries case.56 At the time of his appointment to

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the committee he was working in the Foreign Payment Instrument Institution (LAAPLN), the body charged with the seemingly futile task of regulating Indonesia’s foreign exchange transactions. According to Mochtar’s account Chairul wanted to find a way of preventing Dutch warships from passing through the Java Sea. Just recently, according to Mochtar’s account, the Dutch destroyer Drenthe had been patrolling the Java Sea. In fact the Drenthe did not set sail for Southeast Asia until December and Dutch records suggest that at least in September the only Dutch warship in the region was the Groningen, which was patrolling the waters around West New Guinea.57 It is likely that at this point Chairul’s main concern was to find a way to put an end to SEATO exercises in the Java Sea, just as it was for the PKI delegate in the Constituent Assembly. In any case, when, as Mochtar later recalled, Chairul asked him whether it would be possible to convert the Java Sea into an “internal sea [laut pedalaman]”, the conversation unfolded as follows: Mochtar: “It can’t be done. Why do you ask?” Chairul: “The crucial thing is to make it possible! Don’t say it can’t be done.” Mochtar: “But this is contrary to international law.” Chairul: “You are still too young to speak like that, not [like a] revolutionary…. If we had listened to people who were too legal-minded at the time of the proclamation [of independence in 1945] there would not have been a proclamation. You must change your way of thinking. Actually it must be made possible! The main thing is that you must just think about how the Java Sea can become an internal sea. In the end, you are capable [of doing this], no?” Succumbing to Chairul’s onslaught, Mochtar pleaded that he would have to obtain leave from the LAAPLN to have the time to consider how the Java Sea could become an internal sea. After Chairul helped him obtain two weeks leave, and after he had obtained Pirngadi’s consent to undertake this task on behalf of Chairul, Mochtar escaped to the relative tranquility of Bandung to do as Chairul demanded.58 Mochtar in fact went far beyond what Chairul had asked for. Using the ICJ’s ruling in the Anglo-Norwegian Fisheries case as his primary justification, Mochtar drew straight baselines between the outermost points of the outermost islands on a map of Indonesia in a primary school atlas that he had brought with him. The waters within these baselines—the Java, Flores, and Banda seas and much else as well—would become Indonesia’s internal waters, over which the government would exercise full sovereignty, while the country’s territorial sea would be measured out from the baselines. Having reimagined Indonesia’s territory in this way, Mochtar returned to Jakarta “to report immediately to the minister of veteran

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affairs”.59 By all accounts Chairul was delighted with Mochtar’s work. It gave him precisely the breakthrough he was looking for. Mochtar also presented his proposal to the interdepartmental committee.60 The committee had in fact already considered the “point to point” method at some stage but had decided not to pursue the idea any further. Mochtar’s proposal changed nothing. The view of all the committee members except for Mochtar61 was that what they continued to call the “point to point” method was out of the question. They worried that so far there appeared to be only one precedent for applying that method to a great archipelago, namely, the Philippines claim.62 And they believed that Indonesia had to take particular care in view of its important position as far as international navigation was concerned. But their overriding concern was, as Danusaputro puts it, “the extent of the sea that would be enclosed and controlled when Indonesia’s strength was not yet sufficient”.63 They in fact had good reason to worry, for there was no doubt about the Indonesian navy’s inability to control such a vast expanse of water, particularly when it included such strategically important waterways. In September 1957 the commander of the Ambon Maritime District, which encompassed all the waters of the eastern half of Indonesia, lamented to members of parliament that because he had so few patrol boats at his disposal he was powerless to do anything about foreign ships entering the waters for which he was responsible. He reported that a convoy of warships had recently sailed eastward just off the north coast of Seram and that a submarine had surfaced in the narrow waterway between Ambon and Haruku.64 The navy was weak institutionally as well. According to a US report, Indonesian naval patrols assigned to stop smuggling across the Malacca Strait and illegal fishing along the coast of Sumatra were reported as regularly halting Malayan fishing vessels, “robbing the crews of their ready cash, and occasionally taking fishing nets and outboard motors, presumably for resale in Indonesia…. Only the fact that the Indonesian Government has relatively few vessels available for patrolling has held down the number of incidents”.65 The navy high command had little ability to enforce Indonesian law within Indonesia’s maritime territory as defined by the 1939 ordinance let alone the vast area that would be encompassed by the “point to point” method. Thus, Leifer records, Mochtar “was opposed by Indonesian naval interests because of a fear that the capability to enforce the regime of internal seas did not exist”.66 Having rejected Mochtar’s proposal, the committee at last wrapped up its work.67 It held its final meeting on 3 December and submitted its report and a draft law—titled the “Draft Law on Indonesia’s Water Territory and Maritime Domain”68—to the prime minister on 7 December 1957, nearly fourteen months after Ali had established the committee. The biggest change that it recommended was a widening of the territorial sea from 3 to 12 miles. It justified this change on two grounds. First, it claimed, 12 miles had now become “an acceptable limit”. Second, it claimed that the ILC had concluded that each state should be free to

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set the width of its territorial sea as long as it did not exceed 12 miles. Both claims were open to challenge. While many states had adopted the 12 mile limit by then, it certainly was not acceptable to the major Western maritime powers. More important, the committee misrepresented the ILC’s position. The commission had, as we have seen, merely stated that an extension beyond 12 miles was not permissible, not that any width up to 12 miles was permissible. None of this appears to have worried the interdepartmental committee. In fact, the draft law included an article reserving the government’s right to extend the territorial sea beyond 12 miles at some future date if it believed this to be necessary. There was, however, apparently no mention of the possibility of ever considering the point-to-point method. Indeed, Danusaputro implies that the committee expressly rejected the “point to point” method in its report.69 As well as extending Indonesia’s territorial sea to 12 miles the draft law amended the Territorial Sea and Maritime Districts Ordinance in a number of other ways. It placed the overall authority over surveillance and control, shipping, and fisheries in Indonesia’s “water territory” in the hands of the minister of defence but also gave the minister the authority to delegate that authority to the chiefs of staff of the navy, army, and air force. It fixed the maximum fine for violations of the law at 10,000 rupiah (about US$880 according to the official exchange rate). And it included measures to combat radioactive pollution within Indonesia’s “water territory”. All in all, the draft law was, as it had always been intended to be, a revision of the ordinance, “replacing that ordinance with ‘measures that are up to date’”.70

MOCHTAR’S VISION In normal times the government might well have welcomed an updated version of the ordinance with little debate. But even by the standards of Indonesia in the 1950s these were not normal times. Indeed, in late November, just as the committee was finalizing its recommendations, political tensions were reaching a feverish pitch. The Constituent Assembly was apparently deadlocked over the place of Islam in the state. A national conference in November on economic development made no progress at all in alleviating the grievances of the regions outside Java. On 30 November Indonesians learned that a much-anticipated resolution in the UN General Assembly calling on the Netherlands to enter into negotiations with Indonesia had failed to receive the required two-thirds majority. There was an expectation that this rejection would mark some sort of escalation in Indonesia’s campaign to wrest West Irian from the Netherlands, since Sukarno had warned that if the resolution was not approved Indonesia would consider “other means” to take the territory from the Dutch. Just hours after Indonesians received news of the vote there was an attempt to assassinate Sukarno. Then, in retaliation against Dutch

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intransigence over West Irian, labour unions started taking over Dutch enterprises on 3 December. Their limited success in the case of KPM—most of its ships were at sea and sailed to ports outside Indonesia as soon as their captains heard of the takeovers—crippled interisland communications, thereby encouraging “regionalist leaders…to believe that Djakarta would…be even less capable of exerting its authority in the outer islands”.71 Two days after the labour unions initiated the takeover of Dutch firms the Ministry of Justice issued an order expelling 46,000 Dutch nationals.72 Adding to the general sense of crisis, and refocusing attention on the question of Indonesia’s jurisdiction in the waters between its islands, was a steady stream of reports in the Indonesian and foreign press about the movements of Dutch warships. Between 3 and 8 December it was reported that the Dutch navy was sending the Evertsen to West New Guinea to relieve the Johan Maurits van Nassau, that the navy was “rushing” the Drenthe to the region, that an unnamed Dutch warship was cruising the Java Sea, and that the Groningen had begun operating out of Singapore. “Their mission,” the Straits Times explained, referring to the Groningen, Evertsen, and Drenthe, “will include protection of KPM ships withdrawing from Indonesia and helping evacuate Dutch citizens from the country.”73 The Indonesian government was furious at the UK for allowing Singapore to be used as a base for Dutch warships, which the government feared, so the foreign minister, Subandrio, told the US ambassador, “would blockade Indonesian ports or take other actively hostile action”.74 As these events swirled around him Mochtar was, far from abandoning his proposal, hard at work with Chairul’s encouragement developing his conception of Indonesia’s maritime space. The plan was for Chairul to present Mochtar’s proposal to cabinet so that it would be able to consider that proposal along with the one put forward by the interdepartmental committee. The result of Mochtar’s work was a document dated 9 December 1957.75 After proclaiming the right of all states to protect their security from outside interference, to preserve their fisheries, to profit from their mineral resources, and to regulate immigration, collect customs duties, and enforce quarantine laws, Mochtar considered various alternative ways of meeting Indonesia’s needs. One would be to increase the width of the country’s territorial sea, measured out from each individual island, to some distance beyond 12 miles, but since the ILC had, he claimed, echoing the interdepartmental committee’s dubious reading of the ILC position, concluded that 12 miles was an “acceptable limit” any distance greater than that was likely to invite strong opposition from the maritime powers. The government could declare a contiguous zone beyond 12 miles, but as that concept was then understood such a zone would not give Indonesia exclusive rights to fishing. It could—as Chairul Saleh had demanded—declare the Java Sea to be an internal sea, but no state had ever asserted such a claim over a sea with such wide “gates”. Finally, the government could declare Indonesia’s sovereignty over the

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continental shelf surrounding its islands out to a depth of 200 metres, but the Banda Sea and some other waters between the islands making up Indonesia reached much greater depths than that; in any case, such a step would give it no jurisdiction over the waters above the continental shelf. Having reviewed those options, Mochtar argued that what Indonesia needed was an arrangement that gave it the greatest possible “sea area [daerah lautan]”, could be defended as conforming to international law, and was simple. None of the options that he had outlined so far met those conditions. Moreover, none of them took into account Indonesia’s special character as an “archipelagic state [negara kepulauan]”, he wrote, incorporating Zourek’s term into Indonesian, apparently for the first time. The biggest single problem, he then suggested, was to find a way to remove the “pockets [kantung-kantung]” of high seas lying between Indonesia’s islands. The presence of these areas of high seas made the work of those responsible for enforcing Indonesia’s laws at sea virtually impossible, since they constantly had to check their position to ensure that they were inside waters where they were within their rights to act against violations of those laws. (Figure 2.2 illustrates just how complex Indonesia’s maritime jurisdiction was under the ordinance.) It was therefore necessary, Mochtar concluded, to arrive at a solution based on the conviction “that the Indonesian archipelago forms one unit”. Historically, politically, and above all geographically Indonesia was, as the relevant experts could easily demonstrate, precisely such a unit. Mochtar then listed precedents for treating groups of islands as a unit. He cited the Philippines note verbale of March 1955 and a Cuban law enclosing the waters between the Canarreos Archipelago and the main island of Cuba. He acknowledged that the islands in these cases were closer to one another than those in the Indonesian archipelago but argued that in principle this made no difference, for all that mattered was that the islands of Indonesia “form one single archipelago”. The method of drawing straight baselines that he was proposing, he added, had already been proposed by the committee of experts in the lead-up to the 1930 codification conference. Having established the unity of Indonesia as an archipelago, Mochtar then referred to a map he had prepared showing straight baselines drawn between the outermost points of the outermost islands, thus enveloping all the islands of Indonesia. Taking into account the “geographical realities”, economic interests, and history of Norway, the ICJ had, he claimed, given recognition to this method of drawing baselines in the Anglo-Norwegian Fisheries case. Indonesia would need to draw many baselines longer than any of the Norwegian baselines, but, again, this was irrelevant, since Indonesia formed “an archipelago sufficiently unique to justify drawing baselines in this way”. This method of drawing baselines would bring great benefits. Instantly, the archipelago would no longer be divided by pockets of high seas. There was no need for any widening of Indonesia’s territorial sea, which would be measured out from the straight baselines encircling the archipelago rather than around each island; there was therefore no need to change the 3-mile

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limit. By drawing straight baselines around the whole archipelago the government would break a link with its Dutch colonial past and instead act in the interests of the Indonesian people. Finally, perhaps most important, this method of drawing baselines simplified the task of enforcing Indonesia’s laws and regulations, since all the waters between the islands of Indonesia would now be transformed into “internal sea”. Within these waters the government would have, Mochtar implied, the same authority as it did over its land territory. Though now imbued with Chairul Saleh’s revolutionary zeal, Mochtar anticipated the possibility of opposition from states that had an interest in the passage of ships through what he now called “Indonesian waters”. To minimize this opposition as well as to protect Indonesia’s own interests in the smooth conduct of trade he proposed that the government should declare that “peaceful passage [lalu-lintas yang damai] in the internal seas by foreign vessels is guaranteed as long as, and in so far as, it does not threaten the sovereignty and security of the Indonesian state”. Mochtar also asked that geographers and historians join legal experts in undertaking detailed research that could be used to defend Indonesia’s case in international forums. He ended by noting with regret that up to that time Indonesia had made no formal contribution whatsoever to the work of the ILC. This neglect was all the more regrettable in view of Indonesia’s interests as an archipelagic state. At about the same time, Mochtar also composed a draft declaration embodying the principles set out in this document.76 Sometime in the two or three days between writing the document of 9 December and finalizing the draft declaration Mochtar apparently decided that the government should not leave the width of the territorial sea at 3 miles but should instead extend it to 12 miles, measured out of course from the straight baselines rather than from the low water line around each island as proposed by the interdepartmental committee. In any case, he gave the draft declaration to Chairul Saleh to present to cabinet, which was about to discuss the interdepartmental committee’s draft law. He also gave Chairul a map (presumably the same one he referred to on 9 December) on which he had drawn straight baselines encircling Indonesia.

THE CABINET MEETING OF 13 DECEMBER 1957 In an atmosphere of crisis and extreme anti-Dutch feelings Djuanda’s cabinet met on the night of Friday, 13 December 1957. The meeting began by discussing the political situation inside Indonesia and President Sukarno’s health.77 It then, according to Danusaputro’s account, turned its attention to the Dutch “warships cruising ‘the Java Sea and the seas of Eastern Indonesia’”. “Without exception all the discussion was aimed at finding a way to prevent and respond to the Dutch ‘show of force’ so that a great deal of thought focused on how to ‘close’ the

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Java Sea and other Indonesian seas for Dutch warships.”78 With this goal very much in mind cabinet then began consideration of the draft law prepared by the interdepartmental committee. As best we can reconstruct the sequence of events that evening, Colonel Pirngadi, who was accompanied by staff carrying maps, was then called into the meeting to answer questions about the draft law. Immediately after Pirngadi emerged Mochtar was asked to enter the cabinet chamber. As he was about to go in he was waylaid at the door by Chairul Saleh. Chairul had suddenly had the idea that Indonesia’s territorial sea should be 17 miles wide, since seventeen was a “sacred number” for Indonesia, which declared its independence on 17 August 1945, but he abandoned it after Mochtar insisted that the government would have enough trouble defending 12 miles.79 Once Mochtar had finally entered the cabinet chamber, Djuanda asked him to explain the difference between straight baselines and normal baselines and then asked him a series of questions about the straight baselines on the map he had prepared for Chairul Saleh.80 After Mochtar left the chamber cabinet began debate.81 When the ministers concluded that the draft law could not possibly provide a response to the “Dutch actions” they shifted their attention to the declaration being sponsored by Chairul. There followed a “lively and deep exchange of views” about the consequences of making this declaration. The ministers considered the ICJ’s ruling in the Anglo-Norwegian Fisheries case, the Philippine example, and the discussion the ILC had had regarding article 10 of its draft convention. The majority of ministers believed that the declaration would not only meet the government’s needs at that particular time but also protect Indonesia’s interests in the long term. Ministers were apparently fully aware of the reasons for the interdepartmental committee’s rejection of the “point to point” concept for, according to Danusaputro, some highlighted the great burden that implementing the declaration would place on the government, but this did not dissuade them from believing that the declaration provided the best means of achieving the government’s objectives. After the discussion broadened into a consideration of a wide range of issues including fisheries Djuanda, “at an extremely critical moment”, proposed that the ministers focus entirely on the basic question of the nature and extent of Indonesia’s maritime jurisdiction82 and leave discussion of other issues to another time. Cabinet readily agreed. Subsequently, according to Danusaputro, Discussing the issue of maritime jurisdiction in connection with the issue of the “Dutch demonstration of military might” and “the undermining caused by regional rebellion”, PM Djuanda advanced the concept that the “archipelago principle”83 be applied to the “Indonesian archipelago” with all its consequences, and that the determination would be taken in a political manner.

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Then, apparently just a short time later, cabinet “decided unanimously” to issue the declaration. Whether cabinet amended the wording of Mochtar’s draft declaration in any way is unknown.84 In any event, cabinet issued a statement titled “Government Announcement Concerning the Water Territory of the Republic of Indonesia”. The announcement, which was signed by Djuanda, was dated 13 December but not released until after the meeting finished in the early hours of the following day. At some point, either after cabinet made its decision or immediately after the meeting ended, Chairul emerged to give Mochtar, who had been waiting outside all this time, “the thumbs up”. Mochtar later recalled that he had had no expectation that cabinet would approve his proposal.85 *** Reflecting the clarity of Mochtar’s vision of Indonesia, the declaration was a model of simplicity.86 It began by asserting the uniqueness of Indonesia as “an archipelagic State composed of thousands of islands”, observing that “the Indonesian archipelago [kepulauan Indonesia] has been an entity since time immemorial”, and declaring that “for territorial unity, and to protect the resources of the Indonesian state, the whole archipelago along with the sea lying within it must be regarded as one total unit”. Article 1 of the Territorial Sea and Maritime Districts Ordinance of 1939, the article delimiting Indonesia’s territorial sea, it continued, “is no longer in accordance with these considerations because it divides the land territory of Indonesia into separate parts having their own territorial waters”. Therefore, …the government states that all waters surrounding, between, and connecting the islands belonging to the Indonesian state, regardless of their dimension or width, are integral parts of the territory of the Indonesian state and therefore parts of the internal or national waters [perairan pedalaman atau nasional] which are under the absolute sovereignty [kedaulatan mutlak] of the Indonesian state. Adopting the wording Mochtar had proposed in his document of 9 December, it attempted to reassure the maritime powers by stating that “peaceful passage of foreign ships in internal waters is guaranteed as long as, and insofar as, it does not violate or interfere with the sovereignty and security of Indonesia”. It then neatly defined both Indonesia’s territorial sea and, implicitly, its internal waters: “The delimitation of the territorial sea (the breadth of which is 12 miles) is measured from baselines connecting the outermost points of the islands of the state of Indonesia”. It concluded by noting that the government planned to enact these provisions “as soon as possible” and that its “position will be defended

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[dipertahankan]” at the United Nations Conference on the Law of the Sea scheduled to begin in Geneva in February 1958. In a statement where every word was vital to its meaning the most important phrase was “the Indonesian archipelago”, for it was the presumed existence of this archipelago as a single entity that had enabled Mochtar to reach as far back as to the work of the committee of experts in the 1920s to justify drawing straight baselines around Indonesia. As a specific geographical entity the Indonesian archipelago the government had in mind was of course not the one Sukarno had claimed to be “ordained by God to be a single entity” but the collection of islands and parts of islands that made up the Republic of Indonesia. But the assumption underlying the declaration was that the Indonesian archipelago and the islands and parts of islands making up the republic were one and the same thing and always had been. It also served the government’s purposes to present its claim as having a historical basis, just as other governments had called upon historic links in making territorial claims. Indeed, the declaration conveyed the impression that it merely formalized something that had always been there. *** Although we can follow the general course of the cabinet’s debate we have no record of which arguments finally persuaded ministers to issue the declaration. Nevertheless, drawing on the story as we have presented it so far and keeping in mind the extraordinary context of 13 December, we can make four observations: 1. Ministers were desperate to do something about the movement of Dutch warships. The draft law contributed nothing in this respect. As it happened, the draft declaration did not actually presume to “close” the Java Sea or any other body of water lying between Indonesia’s islands. It did, however, demand that foreign ships observe the innocent passage regime and that they do so in all the waters between Indonesia’s islands. The declaration implied that if a foreign ship threatened Indonesia’s sovereignty or security in any way the government would have the right to take appropriate action. Politicians had for some time been trying to find a way to assert some sort of authority over foreign warships. The declaration allowed them to do so in a way that they could argue was consistent with international law. 2. The government wanted to overcome the jurisdictional problems associated with the patchwork of territorial sea and internal waters created by the Territorial Sea and Maritime Districts Ordinance. This was a problem for the navy trying to combat the “smuggling” that was depriving the government of huge amounts of revenue. And it was certainly a problem for the air force. “We don’t want air space that is full of holes,” Mochtar later recalled air force

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commanders as saying. “How are we going to fly in an airspace like that?”87 It is possible that unsubstantiated reports that the US was supplying arms to regional commanders helped persuade some ministers that the government needed as much scope as possible for intercepting arms shipments. In any case, the declaration removed in a stroke all the jurisdictional complexity that had been associated with the ordinance. 3. Determined as they were to promote economic development, ministers wanted to bring all the resources in and under the waters between Indonesia’s islands under Indonesian sovereignty. The draft law fell well short of providing this. And a continental shelf declaration would, at least on its own, give the government no special rights over free-swimming fish. It would not even cover the seabed in areas such as the Banda Sea where the sea plunged to great depths. Of course the government could have decided to claim a broader territorial sea, declare a fisheries zone extending some distance beyond that territorial sea, and claim sovereign rights over the continental shelf adjacent to Indonesia’s islands but this would have created precisely the sort of patchwork of jurisdictions that ministers were trying to avoid. One of the great attractions of the declaration was its stunning simplicity. 4. As indicated in the declaration itself, ministers wanted to bring all the territory of Indonesia into a single unit. This was advantageous from a purely administrative point of view but at a time when Sukarno was taking every possible opportunity to preach national unity and Djuanda was desperately trying to accommodate the grievances of the regions it had an even more fundamental importance. “‘We must have a concept that shows these simple people physically that we are one’,” Mochtar later recalled the politicians in Jakarta as thinking. “The people had to be shown in simple symbols that Indonesia was one.”88 It is doubtful ministers had any particular plan for embedding this symbol in the minds of the general population. It was, at least at this point, simply their vision of Indonesia. The declaration gave them a radically new conception of Indonesia as a single, united territory. Suddenly, if only in their minds, Indonesia really was a whole, not just (so they liked to believe) in spirit but also as a physical entity. Even if we had a complete record of the meeting we would not know for sure how much weight individual ministers gave to all these considerations. Almost certainly, however, they were attracted by the seemingly miraculous simplicity of the proposal Chairul and Mochtar put before them. In one fell swoop it dealt (at least in theory) with Dutch warships, removed jurisdictional complexity, brought all the resources between the islands under Indonesian sovereignty, and created a new vision of Indonesia. ***

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Whatever the ministers had in mind, Indonesian newspapers regarded the declaration as primarily a security measure. Keng Po, a politically independent newspaper, reported that the declaration gave the government the right to prohibit foreign ships, whether commercial vessels, fishing boats, or warships, from entering the waters between Indonesia’s islands including the Java and Banda seas.89 Describing the declaration as “wise, appropriate, and firm”, Suluh Indonesia, a newspaper associated with the Indonesian Nationalist Party, asserted that Indonesians would no longer allow foreign vessels threatening “our peace and security” to move about freely “inside our body”.90 Bintang Timur, a paper supporting the PKI, suggested that the Indonesian and Malayan governments (Malaya had gained its independence in August) now close the Malacca Strait to foreign warships unless they had the permission of these governments to pass through. Republik believed that as a result of the declaration any attempt by Dutch warships to seize KPM vessels that had fallen into Indonesian hands on 3 December or any manoeuver undertaken by SEATO “under U.S. leadership” would constitute a hostile act.91 There was some confusion about whether the declaration had in fact already given the government new powers. When a reporter asked Djuanda on 14 December whether it meant that the Dutch warships reportedly in “Indonesian waters” were now “violating Indonesia’s territorial sovereignty”, he would only say that the government had yet to issue an interpretation of the declaration on this matter. An unnamed “high official”, however, insisted that even though the government had not yet passed laws implementing the declaration it did indeed have the power to act against foreign ships violating Indonesian sovereignty.92 Against the backdrop of speculation about the immediate security implications of the declaration Mochtar went out of his way in a talk he gave on 29 December to counter the view that the declaration had been motivated by Indonesia’s conflict with the Netherlands. While acknowledging that the conflict had “strengthened the feeling that such a change was necessary”, he portrayed it primarily as a step any state with a weak navy, tiny merchant marine, and undeveloped fishing industry would take to protect its interests, a reflection of the unity of Indonesia, and a natural extension of well-established principles in international law.93 Reasonable though all this seemed to Mochtar himself and the Indonesian government, the maritime powers were outraged, as Indonesians were already beginning to find out.

CHAPTER 4

Geneva 1958 1958 Geneva

Western maritime countries reacted to the declaration swiftly. On 18 December 1957 an editorial in The Times titled “The new piracy” described the declaration as “the boldest claim yet” “in the game of maritime enclosure”. According to the newspaper, the claim was far more serious than other recent claims to maritime territory because of the threat it posed to international shipping and the precedent it set for other states made up of islands (“the Caribbean could become a private lake”). As early as Monday, 16 December, a spokesman for the Foreign Office in London told reporters that “in our view the waters between many of the Indonesian islands have always constituted and do still constitute part of the high seas”,1 but officials in the capitals of the maritime powers wanted to study the declaration before deciding whether to respond formally and, if so, in what way. One problem was that the initial English version of the declaration described the waters inside the straight baselines as Indonesia’s “inland or national waters”. Officials were not sure whether the Indonesian government really meant to describe these waters as “internal waters” or “territorial waters”. Whichever it was, the government’s assurance that “innocent passage was guaranteed” gave them no comfort, since the innocent passage regime placed restrictions on the conduct of foreign ships and since, more fundamentally, the declaration had transformed passage through the seas between Indonesia’s island from a freedom enshrined in international law into a gift bestowed by the Indonesian government. Civilian officials and naval commanders were deeply disturbed about what the declaration might mean for their efforts to contain communism. Referring to the recent claim by the Soviet Union to the waters of Peter the Great Bay, the chief of naval operations in the US navy, Admiral Arleigh Burke, noted that the declaration “closely follows [the] Russian example and may have been due to communist coaching”. In his view the declaration “provides a basis for an unfriendly Indonesian Government to block U.S. and other western ships from passing through these strategic waterways”. His greatest fear was that such a government could “call for Soviet assistance in protecting it against ‘violation of sovereignty’ by so-called ‘western imperialist nations’”.2 Those maritime powers that belonged to the Southeast Asia Treaty Organization were also concerned that 77

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the Indonesian claim could make it difficult for them to come to the aid of the Asian members of the security pact—Pakistan, Thailand, and the Philippines—if they came under military threat. The possibility that the Indonesian government might decide not to enact the declaration into law and that the very “extravagance” of the claim might discourage other governments from considering similarly outrageous claims provided the maritime powers a ray of hope,3 but only a faint one. They quickly concluded that they must protest formally, for otherwise they would convey the impression that they had acquiesced in the claim and embolden other states to follow Indonesia’s example. Between the end of December 1957 and the middle of January 1958 six Western states—the US, UK, Australia, the Netherlands, France, and New Zealand—lodged formal protests. All of these notes asserted that the declaration violated international law. It was, the US declared, “a wrongful and unacceptable appropriation of the high seas”.4 Several of the notes added that for that reason their government would not regard their ships, aircraft, or nationals as being bound by the declaration. In a very long note, designed it appears to educate the Indonesians in the basic principles of the law of the sea, the UK added somewhat patronizingly that “Her Majesty’s government…trust that the Indonesian Government will not attempt to assert” the claim.5 The mildest note came from New Zealand, which after asserting that the declaration was contrary to international law merely pointed out that it was “not in accordance with” the ILC’s draft articles and expressed the hope that Indonesia would not take any steps that would make it any more difficult for the upcoming conference to reach agreement “among all nations” on the law of the sea.6 The maritime powers were desperate to gain the support of as many Asian governments as possible to avoid giving the impression that the protests merely reflected the self-interest of the former colonial states. Their prize target was the Philippines, primarily it appears because of its membership of SEATO. Western diplomats tried to persuade Philippine officials that Western countries might find it more difficult to give the Philippines military assistance in the event of some threat if the Indonesian government enforced its claim. They pointed out, for example, that the waters claimed by Indonesia straddled the most direct route from Australia to the Philippines.7 Western officials were of course aware that the Filipinos had made a claim similar to Indonesia’s but they hoped that if they could demonstrate just how dangerous the Indonesian claim was the Filipinos might quietly drop their own claim. For a moment it looked as if they might succeed, for the secretary of foreign affairs, Felixberto M. Serrano, told the US ambassador that “the Filipinos are searching for some means of disengaging themselves from their previous position but have not yet hit upon a formula to do so”. According to the ambassador, Serrano “said that they now realized the Philippines did not have the force or capability of assuring its own security in adjacent waters but would have to rely upon its friends”.8 At one point US officials considered encouraging Serrano

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to approach the Indonesians but the US ambassador warned that the Indonesians might “seek some form of commitment of support at [the] conference in return for their willingness to withhold action until that time”.9 On 16 January, apparently without contacting the Indonesians, the Philippines government decided to “reaffirm in its entirety the note verbale”. The government also “reaffirm[ed]” its “respect for international waterways traditionally regarded as such” and stated that it would “keep an open mind on the delimitation of territorial seas”.10 These assurances led the Dutch ambassador to believe not only that the Filipinos were trying to differentiate their claim from Indonesia’s but also that it was “not impossible” that the Philippines might let their own claims drop.11 This was hardly the outcome that the Western powers had initially hoped for, however. On the face of it the two assurances given by the government appeared to be incompatible with its fulsome reaffirmation of the note verbale. The attempts by the maritime powers to round up the support of other Asian governments fared little better. Pakistan’s leaders complained to Sukarno about the declaration when the Indonesian president made a state visit in January but that was as far as they took their displeasure.12 According to an Australian report, the Malayan ambassador to Indonesia told the Indonesians that Malaya “could not accept [the] declaration of internal waters” and regarded the 12-mile claim as “absurd”, but the Malayan government decided not to deliver a formal protest, apparently out of fear of provoking the Indonesians.13 In mid-January the Thai foreign minister told US officials that it would inform Indonesia “soon” that it observed the 3-mile limit and reserved “its right of action” regarding the declaration but that it would not be lodging a formal protest.14 The only Asian government that did formally protest was Japan. Because of its large merchant marine, growing dependence on oil imported from the Middle East, and flourishing fishing industry Japan had a vital interest in the waterways between the Pacific and Indian oceans, but the Japanese government did not want to jeopardize its efforts to establish good relations with the Indonesian government at the very time it was finalizing a peace treaty and reparations agreement with Indonesia. As a result its “letter” simply asserted that the declaration was contrary to international law and that the government would therefore not regard it as binding on “its nationals, vessels and aircraft”.15 In order to minimize the harm Japan’s protest might do to its relationship with Indonesia a Foreign Office spokesman emphasized that it had nothing to do with Indonesia’s dispute with the Netherlands or the reparations agreement.16 *** When the protests from Western governments first began to come in various spokesmen responded on behalf of the Indonesian government. Speaking to the press on 18 December, the same day as the Times editorial appeared, Indonesia’s

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ambassador to the UK, Sunario, “said his Government must have control of all the sea communications between the islands and of coastal waters” and that the 3-mile limit was “out of date”.17 The next day the Information Department broadcast a long defence of Indonesia’s position in which it emphasized the importance of “Indonesia’s seas” to the welfare of the Indonesian people.18 And responding to the UK’s protest note on 8 January the acting foreign minister said that Indonesia would remain firm.19 But as the protests continued to come in the government fell silent. US officials had hoped to receive an official response from Indonesia before announcing that the US had formally protested, but when there was no sign of such a response the State Department let it be known that the US had indeed lodged a protest. By 20 January it was widely reported in the overseas and Indonesian press that several governments had protested against the declaration.20 As the headlines announced the protests Mochtar, overcome with the feeling that he was responsible for these attacks on Indonesia (“I felt as if the whole world was collapsing”), rushed to Chairul Saleh’s house to tell him that “All the states are protesting!” “Oh, so they are protesting?” Chairul replied. “If all those big imperialist states protest it means we are on the right path.”21 Indeed, there appears to have been no wavering over the declaration. The protests, Mochtar said several years later, “made [us] really impressed and apprehensive. Don’t think for a moment that we were not. But what could we do? It was a matter of survival; our country was falling apart.”22 Whether it was in fact falling apart is debatable—none of the major political forces defying the government questioned the idea of Indonesia itself—but the authority of the political elite in Jakarta who saw themselves as the personification of that idea most certainly was in grave danger. On 10 February dissident commanders and politicians gathered in West Sumatra issued an ultimatum to the government in Jakarta demanding that Hatta and the Sultan of Jogjakarta be appointed to form a business cabinet until elections were held and that Sukarno revert to a largely ceremonial role. After the government rejected this ultimatum the dissidents declared the Revolutionary Government of the Republic of Indonesia (PRRI) on 15 February. Two days later dissidents in Eastern Indonesia joined the rebellion. As these events unfolded an interdepartmental committee, in addition to preparing for the Geneva conference, had been considering how to respond to the protests.23 Finally, on the first day of the conference, 24 February, the Foreign Ministry released a simple statement that the government was unable to agree with the notes submitted by “several foreign states in reaction to” the declaration “because they don’t contain any principle of international law which Indonesia’s stand has contravened” and the government would be explaining its views “more elaborately” at the conference.24 By the time the ministry released this statement a number of other states had delivered protests. These included the Federal Republic of Germany, Sweden, and the state whose system of straight baselines had inspired Mochtar, Norway.25

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In the midst of all these protests from Western maritime states the Indonesian government received support from the two great communist powers. On 10 February the Soviet ambassador to Indonesia informed Subandrio that the Soviet Union would “fully respect” the Indonesian government’s decision to extend Indonesia’s sovereignty to the waters between the islands and to claim a 12-mile territorial sea.26 The backing of the People’s Republic of China came in the form of an article in the People’s Daily which outlined the reasons the Indonesian government had made the declaration and rebutted the charge that the Indonesians had violated the freedom of the seas. The real violators of this freedom, according to the newspaper, were the United States and Great Britain, which had closed off vast areas in the Pacific Ocean in order to test nuclear weapons.27 Whatever the intentions of the Indonesian government, the declaration of 13 December 1957 had become another battleground in the Cold War.

GENEVA The declaration on 13 December had announced that the government would enact its various provisions into law “as quickly as possible” but at some point it decided to postpone taking this step. This was largely because of the negative reaction it had received from several states but there was also the view that the government should first see what kind of reaction the declaration received at the conference before enacting it into law.28 In the meantime the government was making preparations for the conference, which was due to start in late February. Just four days after the declaration it had announced the members of the delegation that would defend Indonesia’s stand at the conference (see photograph 4.1). The delegation was to be led by Ahmad Subardjo Djoyoadisuryo, a former foreign minister who was now Indonesia’s ambassador to Switzerland. The deputy head was Mas Pardi, who in 1945 had become the first chief of staff of the Indonesian navy and was now serving as the chairman of the shipping court. Among the other members were officials in the ministries of justice and foreign affairs, a naval officer, a fisheries officer, the head of the geological bureau, and Mochtar Kusumaatmadja, who shortly after this announcement took up a lectureship at the newly established Padjadjaran University in Bandung.29 By sometime in February the interdepartmental committee had worked out the position the delegation would take in Geneva. The delegation’s “maximum position”, as Mochtar described it in a talk he gave several months later, was to gain recognition of what the Indonesians were beginning to refer to as the “archipelagic concept” or “archipelagic principle”, but even at this stage they had little expectation that they would actually achieve this.30 They therefore had the “minimal position” of taking every opportunity possible to explain the rationale for the government’s declaration

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of 13 December. At the very least the delegation wanted to preserve anything in the ILC draft convention that might eventually pave the way for recognition of Indonesia’s claim and fight any proposals to amend the draft in ways that might foreclose such recognition in the future. Of particular importance in this respect was article 5, the article dealing with straight baselines. A crucial feature of this article was the absence of any reference to a maximum length of these baselines and, according to Mochtar, the Indonesian delegation was determined from the outset to oppose any attempts to insert such a maximum. Even if the conference gave states made up of islands the right to delimit their territorial seas using straight baselines, that right would, Mochtar explained, mean little if the conference also imposed a limit on the length of these baselines that made it impossible for the Indonesian government to enclose all the islands making up the country in one set of straight baselines. Although Mochtar did not refer to it in his talk, there was another aspect of article 5 that the Indonesian delegation almost certainly wanted to keep, namely, wording that allowed states to take “economic interests peculiar to a region” into consideration when drawing their straight baselines, provided that “the reality and

Photograph 4.1 Indonesian delegation to the United Nations Conference on the Law of the Sea, Geneva, 1958. Ahmad Subardjo Djoyoadisuryo is third from left, Mochtar Kusumaatmadja third from right.

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importance” of these interests “are clearly evidenced by a long usage”. In this way the ILC draft obliquely implied recognition of the importance of taking into consideration the special circumstances of individual states, an element very much in tune with Indonesian thinking on the law of the sea. Mochtar also made no reference to the provision in article 5(3) giving ships the right of innocent passage in waters that had “normally been used for international traffic” before being enclosed in accordance with article 5(1). It appears that the Indonesian government did not object to this provision. Certainly Mochtar did not. But then, as Mochtar noted in his talk, a further aim of the delegation was to emphasize the interests of coastal states in defining the innocent passage regime, particularly in relation to warships. In effect, the Indonesians aimed to take full advantage of the possibilities contained in article 5 while joining with like-minded coastal states in placing certain restrictions on the right of innocent passage. As outlined by Mochtar, the final aim of the delegation was to support moves to give states the freedom to declare territorial seas up to 12 miles wide according to “their conditions and needs”. On this issue, it appeared, the delegation would again highlight the need to take the special circumstances of individual states into account but would avoid giving the impression that Indonesia supported unlimited claims to the sea. While the Indonesians were determined, at the very least, to fight any proposals that would be contrary to the declaration of 13 December, the Western maritime powers and Japan were determined that any convention to come out of the conference should affirm 3 miles—measured from the low-water line except in special cases—as the width of the territorial sea as recognized in international law. At the forefront of this effort was the US government, which believed that the very future of the Free World depended on maintaining the 3-mile limit. Its great fear was that acceptance of 12 miles as the limit would seriously hamper the ability of the US navy to defend the interests of the US and its allies. US warships could be forced to spend a great deal more time reaching trouble spots. For example, warships steaming from Guam to Vietnam might, depending on the disposition of the Philippines government, have to take a much longer route than their usual route through the 7.5-mile-wide Suragao Strait if the Philippines were to have a 12-mile-wide territorial sea. Acceptance of 12 miles as the width of the territorial sea would mean that seaplanes, which the US navy was then trying to develop as a major weapon, would have to refuel in more open—less sheltered—waters. Acceptance of this limit would also place formations of US warships at greater risk of being destroyed in a nuclear attack since they would be forced to travel closer to one another, particularly in relatively confined areas. In addition to all this, the effectiveness of one of the US’s most powerful means of projecting its influence would be greatly reduced: To be effective…displays of naval strength must be a comfort to our friends and present a concrete and yet ambiguous threat to their

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enemies. The ability to do this makes naval power the “precision instrument” of international diplomacy. This psychological effect is achieved by displaying our might as close as possible to the trouble spot without at the same time violating a nation’s sovereignty in her territorial waters. Thus, it is evident that any broadening of territorial sea limits decreases the effectiveness of the United States Navy in one of the important aspects of its role as the guardian of world peace.31 Finally, as the US government saw it, acceptance of 12 miles as the width of the territorial sea would simultaneously benefit the Soviet Union. In particular, the government feared that such acceptance had the potential to make the USSR’s rapidly growing fleet of submarines even more lethal. The navigational hazards commonly found in coastal waters made submarines wary of coming closer than 3 miles of a coast. Thus, US warships could, if necessary, pursue Soviet submarines without transgressing the territorial sea of a neutral state as long as the width of the territorial sea was fixed at 3 miles. If, however, the width of the territorial sea were increased to 12 miles, these submarines could find haven in the waters of a neutral state, while US warships would be bound by international law not to enter those waters. The security of the US and its allies was in peril. With so much seemingly at stake the State Department called on all its resources as it prepared for the conference.32 Officials did detailed studies of how major straits, including the Malacca Strait, would be affected depending on whether the states bordering those straits had territorial seas 3, 6, or 12 miles wide. They analyzed all the provisions in the ILC draft conventions. They collected as much information as possible about the positions governments were likely to take at Geneva. They did a detailed study of Soviet views on the law of sea. Diplomats were asked to present the case for the 3-mile limit to foreign governments, the challenge being, as some officials pointed out, to do so in a way that demonstrated the advantages of that limit to those governments rather than to the US. Finally, they prepared biographical sketches of as many delegates as they could. Subardjo, they wrote, “is one of Indonesia’s most brilliant and experienced leaders in foreign affairs” and “a shrewd political opportunist”. “Urbane and personally friendly”, he had, they added, “tended in the past to be uncommunicative and sly. He is ambitious and appreciative of good treatment.” They knew nothing about Mochtar except that he was an official in LAAPLN at the time they collected the information.33

THE FIRST COMMITTEE The United Nations Conference on the Law of the Sea began in Geneva on 24 February. The main work of the conference was divided among five committees:

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the First, dealing with the territorial sea and contiguous zone; the Second, focusing on a regime for the high seas; the Third, concerned with fisheries in the high seas; the Fourth, considering the continental shelf; and the Fifth, examining the access of land-locked countries to the sea. By far the most important of these committees for Indonesia was the First Committee, since this forum was where questions related to archipelagos as well as the territorial sea would be discussed. In the first few meetings of the First Committee the leaders of the various delegations took turns presenting their governments’ positions. In his address Subardjo argued that international law should take into account the interests of the newly independent states. In his view the 3-mile limit was now “untenable”. Rather than advocating a broader limit that would apply to all states, however, he argued that “allowances should be made for departures from the general rule” according to the circumstances of individual states. As he saw it, the tendency in recent years to claim “wider areas of the sea” was simply the natural consequence of technological change and the growing need for fish as a food source. It was not an “encroachment on the sanctity of the freedom of the seas” but simply corrected the overreaction that took place when Grotius condemned the division of the world’s oceans between Spain and Portugal. The “dialectic of history” had already brought about the “progressive development” of international law—Van Bynkershoek’s cannon shot rule was an early example of that—and should continue to do so. He said nothing at all about the Indonesian government’s recent claim.34 But the head of the US delegation, Arthur H. Dean, did. In fact, Dean, best known at this point for negotiating with the North Koreans and Chinese at Panmunjom in 1953, devoted much of his opening address to an attack on the declaration of 13 December, beginning with this salvo: Now, …if you lump islands into an archipelago and utilize a straight baseline system connecting the outermost points of such islands and then draw a twelve-mile area around the entire archipelago, you unilaterally attempt to convert into territorial waters or possibly even internal waters vast areas of the high seas formerly freely used for centuries by the ships of all countries. And, unhappily, you lend encouragement to others to go and do likewise.35 There was, Dean argued, no point in disguising such a claim as “progress” when what it really did was to subtract from “the common property of all, large and small” and “shackl[e] the freedom of all”. He then launched into an impassioned defence of the freedom of navigation on the high seas as vital to world peace and prosperity. The right of innocent passage through a coastal state’s territorial sea restricted that freedom. Therefore any extension of the territorial sea automatically subtracted from the area where the freedom of navigation reigned. The declaration of 13 December, he implied, was particularly pernicious in this respect. “If, as some

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say,” he asked, referring to the declaration, “the peaceful passage of foreign vessels through their territorial waters is guaranteed as long as and insofar as it is not contrary to the sovereignty or the security of the coastal state, isn’t there only a restricted right of innocent passage?” Appealing to the self-interest of Indonesia and other states thinking of making such claims, Dean emphasized the responsibility coastal states had to enforce their laws within their territorial seas and to provide all the navigational aids needed to ensure marine safety. States claiming broader territorial seas would find it much more difficult to fulfill that responsibility and so were likely to suffer embarrassment and loss of prestige. They would also find it much harder to maintain their neutrality in the event of war; the possibility of foreign submarines taking refuge in an extended territorial sea made that task all the more challenging. As if acknowledging that this appeal might make little impression, Dean added the thinly veiled threat that “it is not plausible to expect that states which respect the equal rights of others to the high seas up to three miles from their shores will long suffer being barred from a sea adjacent to the shores of others four times that wide”. His only concession to the interests of those states that wanted to protect fish stocks and enforce customs and other regulations in waters further than 3 miles from their coasts was that these needs could be met in the form of a contiguous zone rather than by an extended territorial sea. Freedom of navigation—enjoyed by all and benefiting all—must be preserved. The conference rules allowed the head of each delegation to address the opening session of the First Committee just once, but Subardjo was granted the right to reply to Dean’s attack.36 This gave the Indonesian delegation exactly the opportunity to explain the rationale of the declaration that it had hoped for. What the Indonesian government had done, Subardjo told the committee, was not a matter of “lumping together some islands into one whole” but a step based on “considerations of the highest importance”. The method of measuring the territorial sea out from the low-water line worked well for continental states but made the task of patrolling the coastline and maintaining effective control immensely difficult in the case of a state such as Indonesia made up of thousands of islands. Delimiting the territorial sea using straight baselines made that task much easier. It not only shortened the coastline that needed to be patrolled (Mochtar told a US delegate that it would only be necessary to patrol “the entrances and exits” to Indonesia’s “internal sea”37); it also simplified “the structure of the territory to be supervised”. Subardjo then introduced a new argument in support of Indonesia’s position. The Indonesian government, he declared, wanted to reduce the possibility that foreign navies might engage in combat with one another in the seas between Indonesia’s islands. Such combat would disrupt transport and communication networks that were vital to Indonesia’s unity and prosperity. If, in the worst of all possible situations, a foreign power were to employ nuclear weapons in these

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seas, the damage to Indonesia’s fishery resources would be incalculable. Subardjo acknowledged that the freedom of navigation provided for in the declaration of 13 December could be seen by some as “a matter of grace, left to the discretion of the coastal state”, but allowing “unrestricted freedom” in the seas between the islands would mean, “in time of war, that the vital needs of the population of Indonesia—nay, its very existence!—would be left to the grace of the belligerent powers”. Given the choice between these two graces, the Indonesian government had naturally chosen “the one that gives the most assurance for the welfare of its people”. None of this meant that the government wanted to hamper merchant ships from navigating the seas between Indonesia’s islands. After all, Indonesia’s prosperity depended greatly on foreign trade. But, he explained, the government had been compelled to make this “very highly qualified exception” to the freedom of the high seas. Adopting arguments that Mochtar had enunciated in his document of 9 December, Subardjo outlined earlier efforts by eminent authorities in international law to deal with the question of archipelagos. He noted that the ILC had been unable to arrive at a consensus on this question but insisted that that did not mean the conference could not discuss it. Referring to words Dean had used to defend the freedom of navigation, he suggested to his fellow delegates that “‘The common benefit of all peoples of the world’ includes rather than precludes the possibility of making a special regime for archipelagoes, if one or more members of the community is able to demonstrate that such a regime is vital for her existence”. In a final flourish he thanked Arthur Dean for giving him the opportunity to present Indonesia’s case. In his reply Subardjo referred in passing to an etymological argument that the Indonesian government was just starting to employ in its efforts to justify the declaration of 13 December. This argument was that the classical—and by implication true—meaning of the word “archipelago” was “a body of water with islands in it” rather than “islands with water around them”. To support this argument the Indonesian delegation circulated a document that cited a multitude of scholarly sources that defined an archipelago in this way.38 The implication was that in its true sense an archipelago was made up of land and water and therefore had to be considered as a whole rather than as simply a number of islands scattered here and there in the sea. The document then cited a variety of sources which referred to Indonesia and its presumed ancestors as an archipelago. The inescapable conclusion was that archipelagic Indonesia was a single, timeless whole and had to be treated as such. As soon as the leaders of the delegations had finished giving their opening addresses the First Committee got down to the job of considering the ILC’s draft convention on the territorial sea and contiguous zone article by article. At this point the Indonesian delegation had a faint hope that it and like-minded delegations might be able to persuade the committee to include an article recognizing the

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right of states to draw straight baselines around groups of islands regarded as archipelagos. The Indonesians’ closest allies at this early stage were the Philippines, Yugoslavia, and Ecuador, all of which had a vital interest in the question of archipelagos. The delegations of these four “core” states, as Mochtar described them, believed they could count on the support of the Soviet Bloc countries (the head of the Ukrainian delegation had vigorously defended the Indonesian declaration in his opening address39) and a number of Asian and African countries. When it came to the details of how they might achieve their goal the four core delegations had three possibilities: they could try to (1) have article 5 amended in a way that recognized the right of states to draw straight baselines around archipelagos, (2) do the same with article 10, which dealt with the territorial sea of islands, or (3) convince the committee to insert an entirely new article dealing with archipelagos. Apparently as a result of discussions among the four delegations the Philippines delegation proposed two alternative amendments to article 5, while the Yugoslav delegation proposed one to article 10. Both of the alternative amendments to article 5 proposed by the Philippines gave states the right to apply straight baselines to archipelagos made up of islands that were “sufficiently close to one another to form a compact whole and have been historically considered collectively as a whole” and declared that the waters within these baselines “shall be considered as internal waters”.40 The Yugoslav amendment to article 10 simply stated that the method of drawing straight baselines set out in article 5 “shall be applied in the same way to groups of islands distant from the coast” and, like the amendments proposed by the Philippines, added that the waters within the baselines “shall be considered as internal waters”.41 Neither proposal included any limit on the length of the straight baselines. Whatever hope the delegations of the four core states had early in the conference had evaporated by early April. According to Mochtar, other delegations such as Ukraine’s that supported the archipelagic principle advised them that it would be preferable not to submit any amendments concerning archipelagos since “it was better not to have a decision than to have one that harmed the archipelagic principle”.42 Even before the First Committee debated articles 5 and 10, Mochtar told a US delegate privately that the Indonesians “did not feel that there was much chance of [their] proposal being adopted at this conference”. The best they could hope for was “to get a hearing”.43 The three other core delegations apparently shared this outlook. Together, according to Mochtar, the four delegations decided that the Philippines delegation (which, he related, received some sort of threat from the US) should withdraw its amendments right away. They also decided that the Yugoslavs would withdraw theirs as well but use the occasion to call on the conference to ask the UN General Assembly to have the archipelagic issue considered at another conference. The plan was that Subardjo would submit a resolution along these lines right after the Yugoslavs had announced that they were withdrawing their amendment.

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The First Committee considered articles 5 and 10 (and a number of others) in a flurry of activity on 15 and 17 April. The consideration of article 5 went badly for the four core states. The debate focused on an amended article drafted by the UK delegation that included a sentence stating that “Except where justified on historical grounds or imposed by the peculiar geography of the coast concerned, the length of [a] straight baseline…shall not exceed ten miles”. To be consistent with the ICJ’s ruling in the Anglo-Norwegian Fisheries case the wording acknowledged exceptions to the rule, but even so the sentence alarmed the Indonesian delegation, since some of the straight baselines that would be drawn in accordance with the declaration of 13 December were estimated to be more than 100 miles long. The UK delegation immediately accepted a Swedish suggestion that the maximum length of straight baselines be increased to 15 miles. This of course made no difference to the Indonesians but, along with other minor amendments, won the UK version of article 5 sufficient support to obtain a majority of the votes in the committee. The Indonesian delegation and its allies would now have to work to have any limitation on the length of straight baselines overturned at the plenary meetings, where any provision had to receive two-thirds of the votes before it could be incorporated into the convention. The consideration of article 10 turned out more favourably for the four core states, but only after a few twists and turns. As planned, a Yugoslav delegate withdrew his country’s amendment as soon as he had a chance to speak, but the leader of the Danish delegation, Max Sörensen, immediately expressed his regret that the Yugoslavs had taken this step. He noted that in its commentary on article 10 the ICL had urged the conference to give attention to the question of archipelagos. He also referred to a study of questions related to archipelagos that Jens Evensen of Norway had prepared for the conference.44 This study, as Sörensen noted, had proposed a solution very similar to Yugoslavia’s. Sörensen argued that the newly agreed article 5 had greatly reduced the “complexities” associated with archipelagos, for two reasons. First, it had placed a limit of 15 miles on the length of straight baselines. And, second, it reserved the right of innocent passage “where the establishment of a straight baseline has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas”. In light of all this Sörensen reintroduced the Yugoslav amendment, a step immediately supported by the Icelandic delegation. This presumably was a disturbing development for the Indonesian and Philippine delegations since, as Sörensen presented it, the limit of 15 miles on the length of straight baselines that had just been inserted into article 5 would also apply to the drawing of such baselines around archipelagos. Before the debate could go much further, however, Gerald Fitzmaurice of the UK suggested that the whole question of archipelagos “required considerably more study”. This was particularly true in the case of “oceanic”, as compared to “coastal”, archipelagos, he said. One problem was that some archipelagos were fairly compact while others were made

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up of widely scattered islands. Another was that placing a limit on the length of the straight baselines would probably not solve the problem, “for wholly artificial baselines might be drawn between mere reefs and atolls”. He therefore proposed that the matter be “held over for special study”. This was not exactly what the delegations of the four core states had wanted—Fitzmaurice did not suggest what body should conduct this study or when it should conduct it—but it was close enough. A Yugoslav delegate therefore enthusiastically welcomed Fitzmaurice’s proposal, whereupon Sörensen withdrew the former Yugoslav proposal45 and Subardjo decided not to submit the resolution asking the UN General Assembly to have the question of archipelagos considered at a special conference.46 From this point on there was no further discussion about archipelagos at the conference. By far the most contentious issue to be addressed by the First Committee concerned the width of the territorial sea. Closely tied to this issue was the question of whether states should be allowed to exercise fishing rights in a zone contiguous to their territorial seas. Most delegations accepted the ILC’s view that the width of the territorial sea should be no more than 12 miles, but otherwise there was little agreement. Sweden and Italy proposed that states would be able to fix the width up to 6 miles. Canada proposed that the width be fixed at 3 miles for all states but that there should also be a contiguous zone in which states would have the same fishing rights as they enjoyed in their territorial seas. A proposal from India and Mexico gave states the right to fix the width of their territorial sea up to 12 miles. The Soviet Union proposed that states fix the width of their territorial seas between 3 and 12 miles “as a rule”. As it became clear that there was little support for the 3-mile limit, the Canadian, UK, and US delegations put forward proposals that differed from one another in relation to fishing rights but all fixed the width of the territorial sea at 6 miles. Dean emphasized that the US government was putting forward its proposal “at substantial sacrifice of the interests of the United States”. Similarly, the head of the UK delegation referred to the “very considerable sacrifice” his government was making.47 None of these proposals received a majority of the votes. The committee did, however, agree that states would have fishing zones contiguous to their territorial seas and that these zones could extend up to 12 miles from the baselines from which their territorial seas were measured. It also agreed that states should be allowed to enforce customs, fiscal, immigration, and sanitary regulations in a contiguous zone that likewise could extend out to 12 miles from the baselines delimiting their territorial sea. The Indonesian delegation never spoke during these debates but consistently supported every proposal that gave states the right to fix the width of their territorial seas up to 12 miles and voted against every proposal that failed to do this. In keeping with one of its original goals the Indonesian delegation pursued every opportunity to strengthen the rights of coastal states in relation to the passage of foreign ships through their territorial seas. This issue had a special importance for the Indonesians because of the requirement in article 5(3) of the draft convention

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that a state enclosing within straight baselines areas that had previously been regarded as being part of the high seas respect the right of innocent passage in waters that had “normally been used for international traffic” even though those waters would now have the status of internal waters. Thus any decisions that the conference might make regarding the passage of foreign ships in the territorial sea could potentially apply to passage through that vast area that the Indonesian government claimed as internal waters. Although the declaration of 13 December had made no reference to a “right” of passage in these waters the Indonesian delegation did not try to challenge the ILC’s draft paragraph. Instead, it joined with like-minded delegations in trying to preserve other articles in the ILC’s draft that emphasized the rights of coastal states in relation to foreign ships. One of those articles regarding the rights of coastal states that the Indonesians worked to preserve as the ILC had drafted it was article 17. Paragraph 3 of article 17 gave a coastal state the right to “take the necessary steps in its territorial sea to protect itself against any act prejudicial to its security” and to “suspend temporarily in definite areas of its territorial sea the exercise of the right of passage if it should deem such suspension essential for the protection” of that right. This provision did not apply to passage through “straits normally used for international navigation between two parts of the high seas”, since paragraph 4 expressly prevented states from suspending innocent passage through such straits. Even so, the maritime powers objected to the discretion paragraph 3 gave coastal states in deciding whether to suspend passage in other parts of their territorial seas. The Netherlands, Portugal, the UK, and the US therefore proposed that the words “if it should deem such suspension essential” be replaced by the words “if such suspension is essential”. On 1 April Mochtar argued that the sovereign rights of a coastal state in its territorial sea took precedence over the right of innocent passage. In response to a Dutch delegate’s argument that the proposed amendment provided an “objective” criterion for determining when the right of innocent passage could be suspended Mochtar argued that in the absence of an independent arbiter only the coastal state was in a position to make this judgement.48 This spirited defence of state sovereignty won the support of the Soviet Union but failed to save the original wording. As adopted by the First Committee, paragraph 3 incorporated the phrase “if such suspension is essential” that the maritime powers had asked for.49 Another article that the Indonesians wanted to preserve as the ILC had drafted it was article 24, which as we have seen allowed coastal states to “make the passage of warships through the territorial sea subject to previous authorization or notification”. The question of the passage of foreign warships through the waters lying between the islands making up Indonesia was even more sensitive than usual for the Indonesian government at this moment. On the eve of the conference the Dutch submarine hunter Drenthe had, after a

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brief exchange of fire, seized a former KPM vessel in waters in the Makassar Strait that the Dutch still regarded as part of the high seas but that the Indonesian government considered as “Indonesian waters”.50 On the second day of the conference the Information Department emphasized that while “the new territorial waters regulation” (implying that the declaration already had the force of law) “maintained the guarantee for peaceful sea traffic by aliens’ ships...the passage of Dutch war ships” such as had just occurred “was a positive danger and was disturbing internal peace”.51 With this event very much in mind the Indonesian delegation enthusiastically supported the ILC’s wording of article 24. In stark contrast, the maritime powers balked at any restriction on the movement of their warships. When debate began on this article the UK delegation submitted an amendment that would prevent coastal states from requiring prior authorization or notification in the case of warships passing “through straits used for international navigation”. Since the maritime powers objected far more to being required to seek prior authorization than to giving prior notification, the West German delegation proposed that the words “authorization or” be deleted from the ILC’s draft. And the Netherlands delegation proposed that there be no requirement of either prior authorization or prior notification “except in exceptional circumstances”. In response to the British proposal the Saudi Arabian delegation declared that it was “unthinkable” that foreign warships would be free to pass through straits that were part of a state’s territorial sea without authorization. Responding to the West German proposal, a Philippines delegate argued that whatever “the technicalities of international law, a warship should always ask for authority as a matter of elementary courtesy”. At this stage of the proceedings the maritime powers offered but meek resistance to such criticisms. The First Committee rejected all of their amendments and then voted to adopt the original wording.52 Thus, by the time the First Committee had finished its deliberations the conference had abandoned any possibility of providing a regime for archipelagos but many other questions of vital importance to Indonesia remained to be decided one way or another in the plenary meetings. The Indonesian delegation would support renewed efforts to allow states to fix the width of their territorial seas up to 12 miles. It would fight to overturn the limit of 15 miles on the length of straight baselines that the First Committee had inserted into article 5. And, while there was little hope of reinserting into article 17 the element of discretion that the ILC draft had explicitly given coastal states in deciding whether to suspend innocent passage in their territorial seas, it would work to retain the right that article 24, as adopted by the committee, would give coastal states to subject foreign warships to prior authorization or notification. Like other provisions relating to the passage of foreign ships, article 24 had a direct bearing on the nature of the jurisdiction the Indonesian government would be free under international law to exercise within

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its territorial sea and, perhaps at some future date, in the vast space it had enclosed within straight baselines.

THE PLENARY MEETINGS The conference finished late in April in a rush of fourteen plenary meetings held over just one week. Again the question of the width of the territorial sea proved to be the most contentious issue. On 25 April the conference voted on three proposals. The first was the proposal that the US had presented to the First Committee earlier. As well as fixing the width of the territorial sea at 6 miles, it created a zone extending out to 12 miles from the baselines from which the territorial sea was measured in which a coastal state would have the same fishing rights as it exercised in its territorial seas, but it also gave certain rights to the fishing vessels of other states that had previously fished in that zone. The second proposal came from a group of eight states that included Indonesia, Mexico, Burma, and Saudi Arabia. Following the principle that the Indonesians had upheld from the start of the conference, this proposal allowed each state to fix the width of its territorial sea up to a limit of 12 miles. In those cases where a state’s territorial sea was less than 12 miles wide, that state would be able exercise exclusive fishing rights in the waters lying between the outer edge of its territorial sea and 12 miles. Finally, the Soviet Union put forth a revised version of the one it had presented to the First Committee. Like the earlier proposal, it declared that states would fix the width of the territorial sea between 3 and 12 miles “as a rule, …having regard to historical and geographical conditions, economic interests, the interests of the security of the coastal State and the interests of international navigation.”53 None of these proposals received sufficient support to be incorporated into the convention. The US proposal received the largest number of votes but not the required two-thirds of the votes. As well as voting against this proposal and for the one it had sponsored, the Indonesian delegation voted for the Soviet proposal, which as well as allowing states to claim territorial seas as wide as 12 miles, or even wider in “exceptional cases”,54 captured the ethos of the declaration of 13 December. Moments after failing to include an article dealing with the width of the territorial sea the delegates agreed, without a single dissenting vote, to incorporate the concept of a contiguous zone into the convention and agreed that this zone “may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured”.55 This was significant in two respects. First, it implied universal recognition that at least in relation to customs, fiscal, immigration, and sanitary regulations a coastal state’s jurisdiction extended out to 12 miles. Second, it confirmed the view that had been held by nearly all delegations as well as the ILC that whatever the width of the territorial sea it was no more than

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12 miles wide. The 1930 codification conference had been unable to agree even on this much. Two days later the conference turned its attention to an issue of even greater importance to the Indonesians than the width of the territorial sea, namely, the limit of 15 miles on the length of straight baselines that the First Committee had inserted into article 5. When article 5 came to a plenary meeting on 27 April the leader of the Canadian delegation, which was deeply concerned to protect Canada’s rights around the islands making up its Arctic fringe, asked for a separate vote on the sentence that specified this limit, arguing that it “impose[d] an arbitrary mathematical limit in a provision” that the ILC had, in keeping with the spirit of the ICJ’s ruling in the Anglo-Norwegian Fisheries case, “intended to be flexible”. In reply to this proposal, which was immediately supported by the deputy leader of the Soviet delegation, Gerald Fitzmaurice insisted that the sentence did in fact give coastal states “some latitude”, whereupon Subardjo leapt to the support of the Canadian proposal. According to Subardjo, the limit of 15 miles was particularly arbitrary in view of the conference’s failure to agree on the width of the territorial sea. When, with the agreement of a majority of the delegations, the sentence was put to a separate vote, it was supported by a majority of the countries present but not the two thirds required for it to be adopted. This was a major victory for the Indonesians. The convention would contain no article recognizing the right of states made up of islands to draw straight baselines in the manner set out in the declaration of 13 December but also no article that would make such baselines contrary to international law. With this matter settled, Subardjo joined with the leaders of most of the other delegations in adopting article 5 by an overwhelming majority. The one “core” state not to vote for it was the Philippines, which abstained on the grounds that it conflicted with the Philippines constitution.56 The other article of vital importance to the Indonesians was article 24. The First Committee had agreed by a very large majority that coastal states “may make the passage of warships through the territorial sea subject to previous authorization or notification”. At least some of the maritime powers appear to have either voted for this provision or abstained from voting.57 This is puzzling, since all of them strongly opposed moves to subject their warships to prior authorization and most of them also balked at having them subjected to prior notification. By the time the delegates turned their attention to article 24 at the plenary meetings the maritime powers had decided that they would acquiesce to prior notification but had renewed their resolute opposition to prior authorization. Much to the chagrin of the delegations including Indonesia’s that supported prior authorization the maritime powers succeeded in having a separate vote on the words “authorization or” and in mustering enough support to have these words deleted from article 24. The delegations wanting to make the passage of foreign warships subject to prior authorization were appalled by this turn of events. The leader of Ceylon’s

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delegation declared that deleting the words “authorization or” had the effect of “subordinat[ing] the sovereignty of the coastal State” to that of the warship’s state. Several delegates including Subardjo immediately announced that they would now vote against article 24. A vote for this article “by weaker states”, declared a Ghanaian delegate, “would be tantamount to aiding and abetting their own extermination”. As McDougal and Burke explain, these “weaker” states feared that with the deletion of “authorization or” the article now implied “a definite, if slightly qualified, right of access”.58 In the end the amended article 24 received a solid majority of the votes but not the required two-thirds majority.59 Thus the convention would make no mention of either prior authorization or prior notification. The only provision concerning warships that the conference could agree on stated that if a warship failed to comply with a coastal state’s regulations concerning passage through its territorial sea and disregarded requests to comply with these regulations then the coastal state could require that ship to leave the territorial sea.60 The Indonesian government for one, as we shall see shortly, would not be satisfied with such a limited recognition of its authority in relation to the passage of foreign warships. The week of non-stop meetings at the end of April finalized four conventions: the Convention on the Territorial Sea and the Contiguous Zone, Convention on the High Seas, Convention on Fishing and Conservation of the Living Resources of the High Seas, and Convention on the Continental Shelf. After prolonged debate and a multitude of amendments the conference had successfully codified all of the articles submitted by the ILC except for one. But that one missing article left a huge gap in the conference’s work. Mochtar went so far as to say that the absence of agreement on the width of the territorial sea had rendered the First Committee’s work “completely useless [sia-sia belaka]”.61 Since there was no agreement on the outer limits of a state’s sovereign territory, there was also no common understanding of where a state’s contiguous zone began or where the innocent passage regime applied. Thus the Convention on the Territorial Sea and the Contiguous Zone was an unfinished document. But so too were the other conventions, because they all referred to the territorial sea in defining the waters where they were operative. The Convention on the High Seas defined the high seas as “all parts of the sea that are not included in the territorial sea or in the internal waters of a State”. The Convention on Fishing in turn assumed the definition set out in the High Seas Convention. And the Continental Shelf Convention, which gave states “sovereign rights” over the resources in and under their continental shelves, defined the continental shelf as including “the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres”.62 With so much depending on agreement on the width of the territorial sea, the Indonesian and most other delegations readily agreed in the final plenary meeting to ask the UN General Assembly to call a second conference specifically to resolve this question.63

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*** Even at this stage the Indonesian delegation almost certainly looked to a future conference as another opportunity to put forth its ideas about how the territorial sea should be delimited in the case of archipelagos. In any case, the delegation had already achieved much at this conference. Subardjo had seized the opportunity Arthur Dean gave him to propound the rationale behind the declaration of 13 December. Dean himself remained staunchly opposed to the Indonesian position—its “implications to the free world…are enormous”, he wrote after the conference64—but another member of the US delegation, Paul Meyer, gave Mochtar a sympathetic hearing when the two of them discussed Indonesia’s position in a private meeting. At the very least the Indonesians left an impression on their fellow delegations. Meyer described Mochtar’s speech to the First Committee on 1 April as “brilliant”, while even Dean was moved to “compliment” Mochtar on “the clarity of his statement”.65 Whatever impression they left on the Americans, the Indonesians had started the crucially important process of finding potential allies to their cause. The most obvious of these were the other “core” states, of which the Philippines was the most important, but the Indonesians also found common ground with the Canadians on the question of straight baselines. They consistently supported the Saudi Arabian delegation in its ultimately failed effort to prevent the maritime powers from inserting into the Territorial Sea Convention an article “primarily intended to secure access to the Israeli port of Eilat…through the Straits of Tiran, which was then under Arab control”.66 And in a speech to the Fifth Committee Mochtar vigorously supported the need to take into account the interests of the land-locked states.67 In a telegram sent to Washington immediately after the conference Dean complained bitterly about the prevalence of bloc voting, but generally, as a State Department official noted, the delegations had in fact voted according to their particular interests.68 Thus, for example, the Indonesians joined the Canadians in helping to defeat the US proposal on the territorial sea, which the Indonesians voted against because of its failure to recognize 12 miles as the width of the territorial sea and the Canadians opposed because it would have given US fishing vessels access to waters near Canada’s coast. The East-West divide was probably most pronounced in the vote on whether coastal states should have the right to subject the passage of foreign warships to prior authorization or notification, but even on this issue the division was by no means clear cut. Western-oriented states such as the Republic of Korea and the Federation of Malaya voted with Soviet bloc states (and Indonesia) in opposing the amended article that no longer gave coastal states the right to require prior authorization. Probably the most important division within the conference was between the older maritime powers and the newly independent states of Asia and Africa. This division was not always reflected in the voting but it permeated the debates. On

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the one hand, the delegates representing the older maritime powers, no matter how much they tried to appear to accommodate the interests of other states, gave the impression that they regarded themselves as the true guardians of international law and the guarantors of peace and order in the world. On the other, in the eyes of the delegates from the newly independent states the maritime powers were inflexible, hypocritical, and seemingly incapable of comprehending just how much existing conceptions of international law failed to take into account the interests of the new states. Though diplomatically expressed, this sentiment had been the theme of Subardjo’s rebuttal of Dean’s address to the First Committee. During the final debate on article 5 he remarked that phrasing that made it possible for states to take their economic interests into account when drawing straight baselines if they could demonstrate the reality of those interests through “long usage” could hardly be acceptable to a “new State which had had no say in the matter in the past”.69 Even more bluntly, a Ghanaian delegate declared that the “African States, which had seen their continent divided among the great Powers without the consent of the populations concerned, found it difficult to understand the moral arguments now advanced against the division of the sea”.70 In 1958, as decolonization was only beginning to gather pace in Africa, such voices were not numerous enough to shape the course of an international conference, but that situation was changing rapidly. On 8 May 1958 Subardjo signed the high seas, fisheries, and continental shelf conventions on behalf of the Indonesian government but not the Territorial Sea Convention, which the government rejected on the grounds that it violated the principles in the declaration of December 1957.71 The government was no closer, in any formal sense, to gaining recognition of the principles embodied in the declaration of 13 December 1957 than it was before the conference. The conference had not been a complete failure for Indonesia, however. The Indonesian delegation had made its government’s claim better known to the world, had begun the process of identifying potential allies in the debates that lay ahead, and helped defeat the proposal to limit the length of straight baselines to 15 miles.

CHAPTER 5

Regulation No.4 of 1960 1960 of No.4 Regulation

Now that the Geneva conference was over the question was what the government would do next. In its report the Indonesian delegation urged the government to press ahead with a law and to mount a diplomatic campaign to gain support for its position. The reasons the government had had for issuing the declaration were now, it seemed, at least as compelling as they had been before the declaration. By May 1958 the government had largely suppressed the rebellion in Sumatra but it was struggling to do the same in northern Sulawesi. Its fears about the involvement of foreign powers in the rebellions were confirmed in May when the military shot down an American bomber over Ambon. The government was more determined than ever to “liberate” West New Guinea from the Netherlands. And the Geneva conference had given officials a far greater appreciation of the resources that Indonesians might be able to extract from the sea and the seabed.1 Despite all these circumstances, however, the government did not act. Apparently cabinet did not even discuss the delegation’s report.2 The main reason for the government’s neglect was that it was entirely preoccupied with matters that appeared far more urgent. Besides the regional rebellions and its dispute with the Dutch it faced the ongoing uprising by the Darul Islam movement, the question of what role, if any, the increasingly strong PKI should have in the government, and a great range of economic problems. Even more important, the deadlock in the Constituent Assembly over the question of what should constitute the fundamental principles of the Indonesian state created deep uncertainty about the future of the country, as did Sukarno’s ever stronger attacks on the party system. As Danusaputro explains, the fraught and highly volatile situation “seriously undermined” efforts to fulfill the vision in the December 1957 declaration.3 Of course, the initiative of even a single individual could have made a difference, as it had in 1957 when Chairul Saleh urged cabinet to adopt Mochtar’s proposal, but no one in any position of power was prepared to take such an initiative at this time. Though still a member of cabinet, Chairul appears to have made no effort to persuade his colleagues to take action. At the same time, so the sources imply, the chief of staff of the navy, Subiyakto, resisted any moves to enact the declaration on 98

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the grounds that the navy did not have the resources to enforce the government’s will over the massive area that would come under its jurisdiction.4 According to Danusaputro, members of the delegation to the Geneva conference repeatedly pressed “parties in authority [fihak-fihak berwenang]” to consider proposals that the delegation had put forward and that the interdepartmental committee had then worked on, but those parties were unable to provide any basis for taking further steps towards implementing the declaration. “The longer this situation continued the more uncertain it seemed, because in [that] environment the committee itself could not take the initiative without the approval of cabinet.”5 A seminar on “Indonesia’s Territorial Waters” at Gajah Mada University in December 1958 at which Mochtar gave an account of the Geneva conference helped to keep the issue in the news but apparently made no impression on the government.6 During the course of 1958 the Western maritime powers tried to divine whether the Indonesian government would enact the declaration into law. There were some indications that it would. When, in August or early September, the Indonesian navy arrested a British vessel 23 miles from land the British Embassy in Jakarta argued that this action merited “a stiff reply” since “this was the first attempt by the Indonesians at enforcement of their territorial waters claim in respect to British vessels”.7 In November the Indonesian ambassador to the UN, former prime minister Ali Sastroamijoyo, indicated that his government had no intention of backing away from the declaration when he expressed the hope in the Sixth Committee, which was debating the question of holding a second conference on the law of the sea, that “special consideration would be given to the problems arising from Indonesia’s unique geographic, economic and historic position” and explained that “safeguarding…communications” between Indonesia’s islands “was essential for the very existence of the Indonesian State”.8 But there were also signs that perhaps the government was quietly dropping the idea of enacting the declaration. One of these signs was a series of decrees signed by Subiyakto. These decrees, issued “in the interest of the security and defence of the State” between June 1958 and January 1959, declared certain “territorial waters” along the south coast of West Java, in Ambon Bay, along the northeastern coast of Sulawesi, and along the west coast of Borneo to be “closed”.9 There was no mention of the system of straight baselines enunciated in the declaration. Nor was there any mention of the width of the “territorial waters” that the decrees applied to. Except for the decree concerning Ambon Bay, which declared all the waters of the bay eastward of a certain line to be “closed territory”, they merely specified the sections of coastline that marked the landward boundary of the waters in question. “It looks,” observed a Foreign Office official shortly after the first decrees were issued, “as though the Indonesians really do not intend to pursue their claim to extended territorial seas.”10 During the early months of 1959 the Western maritime powers had further evidence that perhaps the government would drop its claim, as we can see by turning our attention to the issue that concerned them the most: the freedom of

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their ships—particularly their warships—to pass through the straits and seas lying between Indonesia’s islands.

THE NOTIFICATION DILEMMA Since the early 1950s the Western maritime powers had understood that the Indonesian government might on occasion become alarmed about the activities of their warships in waters lying between the islands making up Indonesia’s land territory. For the most part they did not want to provoke a hostile reaction from Indonesia if they could avoid doing so. In order to reduce the possibility of provoking the Indonesians Western governments often notified Indonesian naval authorities when their ships were about to pass through the Sunda and Lombok straits or other waters close to Indonesia’s islands. They did so, they said, purely as “a matter of courtesy”, since, as they saw it, they were under no obligation to provide notification. As far as Western governments were concerned there was much to gain by providing such notification and little or nothing to lose. The declaration of December 1957 completely changed that calculation, however, since they feared that even “courtesy notification” could now be interpreted as implicit acceptance of the declaration. An Australian source notes that by January 1958 “it was understood that United States ships intended to sail through” the straits between Indonesia’s islands “without any notification before or afterwards”.11 That policy was almost certainly in place when in the middle of that month (according to a chronicle of the US Navy) “Destroyer Division 31 transited Lombok and Makassar Straits to exercise United States rights under international law, after Indonesia improperly proclaimed jurisdiction over those water ways”.12 Just a few days later Australia abandoned its policy of providing notification13 and it appears that all the other Western maritime powers had taken the same step by February or March. In this way they could not be seen as providing even a hint of recognition of the Indonesian claim. At the same time, however, they risked damaging their broader relationship with Indonesia by irritating the Indonesian government and provoking extreme nationalist elements within the country. They also, as they saw it, risked giving the PKI further ammunition to turn Indonesians against the West. So which was the greater risk, giving implicit recognition to the Indonesian claim or inflaming the already delicate relationship with Indonesia and giving the communists a boost? This was the notification dilemma. For a long time, it appears, the Indonesian government did not complain about the change in policy, nor were there any incidents involving Western warships that might provoke groups within Indonesia to insist that the government take action. Nevertheless, the US government, which was trying to mend the damage done to its relationship with Indonesia by its involvement in the regional rebellions, decided fairly early on that it should on some occasions inform Indonesian officials

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of the presence of US warships in the area as a way of assuring them that these ships would not be meddling in Indonesia’s internal affairs. The UK, Australian, and New Zealand governments maintained their policy of non-notification until 1959 but in April of that year they too began to reconsider their position. On 24 March a flotilla of British, Australian, and New Zealand ships that included aircraft carriers and cruisers passed northward through the Sunda Strait on their way to a SEATO exercise. The ships then entered a narrow channel through the Thousand Islands and there conducted a replenishment exercise. When the Indonesian air force made Subandrio aware of the passage of these ships through the Thousand Islands, he “remarked amicably” to the Australian ambassador, L.R. McIntyre, at a “chance meeting” on 1 April that “the Indonesian Government would like to be informed, as a matter of courtesy, when foreign warships were to pass close to Indonesian territory”. Subandrio had already mentioned the matter to the US ambassador, Howard Jones, who had been able to tell him that no US warships had been in the area at the time but that if any had been present “he would have followed his usual practice of notifying the Indonesian Government”. According to McIntyre, Subandrio had “volunteered” to Jones that the question of notification had nothing to do with Indonesia’s maritime claim, “which he professed had been formulated with an eye to possible foreign intervention in the rebellion, and hinted was unlikely to be pressed actively”.14 Subandrio’s request was hard to ignore. He did not demand that foreign powers notify the Indonesians about the passage of their warships through waters close to Indonesia’s islands but merely asked that they do so as a matter of courtesy. He explicitly disassociated his request from the December 1957 declaration. And, most enticingly, he fostered the hope that the government might not enact the declaration into law. In light of all this McIntyre wrote to Canberra on 1 May asking whether the Australian government might review its policy of non-notification.15 By this time a PKI member of parliament had raised a series of questions in the defence committee about what had happened on 24 March. Desperate to appear to be responding strongly to the Western powers, the deputy foreign minister, Suwito, asked McIntyre whether he could announce that Australia had apologized for not giving prior notification of the passage of the Commonwealth ships through Indonesia’s territorial sea. McIntyre refused, both because it was not true that Australia had apologized and because such an apology would have implied an obligation to notify.16 Already, however, officials in Canberra, London, and Wellington had begun to review their policy of non-notification. The challenge was to devise a policy that would satisfy the Indonesians but without giving them the slightest excuse to think that the three governments were acquiescing to the Indonesian government’s claim. In the meantime, the idea of enacting the declaration into law appeared to be all but dead. Though described by Jones as “all things to all men”,17 Subandrio was consistent in his approach to this issue. Earlier in 1959 he had told the

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Australian external affairs minister, R.G. Casey, that “the real background to the Indonesian attitude” regarding its claim “was their concern with the security problem throughout the islands” and that “as Indonesia grew easier in its mind about the security problem they might reconsider their position”.18 More significantly, he made a similar comment to Subardjo, who was still Indonesia’s ambassador to Switzerland, when he and Chairul Saleh accompanied Sukarno on a visit to Europe in June 1959. By this time the question was becoming more urgent because plans were already underway for a second United Nations Conference on the Law of the Sea to be held in Geneva in 1960. When Subardjo asked Subandrio and Chairul when the government would enact the declaration, the foreign minister told him that that there was no need to do this yet. Chairul, in contrast, promised to raise the question in cabinet, but Subardjo also wrote to Mochtar asking him to use his connection with Chairul to reinforce this commitment.19 There the matter stood in late June 1959.

THE REGULATION Just a few days later a radical change in the political environment suddenly made it much easier for those wanting to enact the declaration into law to pursue their aim. On 5 July, when the multiple political crises within Indonesia seemed beyond solution, Sukarno issued a decree dissolving the Constituent Assembly and reinstating the 1945 constitution, which gave the president far greater power than the provisional 1950 constitution had. One of these powers was the power to make laws; the only requirement was that he would later seek the approval of parliament. Using his newly acquired authority, Sukarno took charge of the government, appointed Djuanda to the position of first minister, and made the chiefs of staff of the three branches of the armed services ex officio ministers in a reformed cabinet. By this time the navy had a new chief of staff, Commodore R.E. Martadinata, following the dismissal of Subiyakto because of a revolt by junior officers over his leadership.20 While the dismissal appears to have had nothing to do with his views on enacting the declaration, Martadinata was, unlike Subiyakto, an enthusiastic supporter of the declaration and moved to have it enacted into law. Martadinata hoped to point to the greater burden that would be placed on the navy as an argument not for delaying enactment but for building up the navy.21 Shortly after taking over, Martadinata reactivated the moribund interdepartmental committee and appointed himself as chairman.22 One of those who remained as a member of the committee was Mochtar Kusumaatmadja. The committee’s work was given added impetus by a presidential message late in August calling for a radical overhaul of any laws “that still have colonial characteristics”.23 Foreign embassies appear to have been unaware of any shift in the government’s outlook on enacting the declaration into law when, in September, Subandrio told

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the Netherlands chargé d’affaires in Jakarta that “Indonesia would not tolerate any further passage of Netherlands warships through Indonesian waters” and that such passages would be treated as a casus belli. Subandrio made it clear that “Indonesian waters” included the Java Sea and other waters lying between the islands.24 On the face of it, this demand suggested that the government was beginning to recommit itself to the declaration. Noting what Subandrio had said to Casey earlier in the year, however, an Australian intelligence report argued that Subandrio’s main intention was to put pressure on the Netherlands over the West New Guinea issue and to draw the public’s attention away from the country’s many domestic problems. The hope remained that once the dispute with the Netherlands and other security problems were resolved the government would set aside any plan to enact the declaration into law.25 In the meantime, the committee was going about its work with renewed energy. Its two principal tasks were to discuss legislation to ratify the three UN conventions that Subardjo had signed after the Geneva conference and to draft a law that would enact the principles in the December 1957 declaration. On 13 November Martadinata presented draft laws on both of these matters to cabinet, which appears to have approved them in principle.26 The law on “territorial waters” (to use the term in the news agency’s report) would, Martadinata said a few days later (when three Soviet warships were visiting Indonesia), give “functionaries at sea…a legal basis to act against violation of Indonesia’s territorial waters limit”.27 But the bill was sent back to the interdepartmental committee for further consideration of a number of points.28 One of these apparently concerned terminology. The committee had first given the law the vague title “The Law on Indonesia’s Water Territory [Wilayah Perairan Indonesia]”. In a memorandum dated 1 January 1960 Mochtar proposed that the law instead be called “The Law on Indonesia’s Territorial Waters [Perairan Wilayah Indonesia]”.29 He explained that since the Geneva conference the term “territorial waters” had clearly been understood to encompass both the territorial sea (laut wilayah) and internal waters (perairan pedalaman). Mochtar also wanted to make a change to an article in the draft law allowing foreign ships innocent passage in Indonesia’s internal waters. The problem with the article, he argued, was that it failed to take account of article 5(2) of the Territorial Sea Convention. Based on article 5(3) of the draft convention prepared by the ILC, article 5(2) provided the right of innocent passage in waters that had had the status of high seas or territorial sea before being enclosed by straight baselines drawn in accordance with the convention.30 Mochtar proposed that the law clearly distinguish between those internal waters where the right of innocent passage existed in accordance with article 5(2) and those where there was no such right. Unless the wording was changed, he warned, innocent passage would be available to foreign ships in all the waters inside the straight baselines, including those waters that had had the status of internal waters before the declaration. The interdepartmental committee apparently made decisions on these and other matters

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on 7 January 1960. It then assigned a working group that had already been working on some of these issues the task of preparing a document explaining the draft law for cabinet. By this stage the momentum was gathering for the government to take some sort of action before the UN conference started on 17 March. On 15 January Subardjo, who was in Jakarta for consultations in preparation for the conference, where he would again lead the Indonesian delegation, declared that Indonesia would again bring its claim to the conference and that he would also discuss the question of territorial waters at a meeting of the Asian-African Legal Consultative Committee in Colombo on his way back to Switzerland.31 Just a few days later the interdepartmental committee wrapped up its work.32 Because there was no need to refer the legislation to parliament before it became law it had already been decided it should take the form of a Government Regulation in Lieu of a Law.33 Neatly sidestepping the problems associated with all the previous titles, including Mochtar’s, which despite his explanation risked importing the confusion associated with “territorial waters”, the committee now titled the bill “Government Regulation in Lieu of a Law on Indonesian Waters [Perairan Indonesia]”. It then forwarded the documents it had prepared to cabinet. Cabinet in turn acted quickly. On 20 January the Department of Information announced that cabinet had that day “discussed and passed some draft regulations which…included a Government regulation on the replacement [redefinition] of the country’s territorial waters and which would be directives for the country’s delegates” at the conference.34 The only remaining step was for Sukarno to sign the regulation into law. Despite these developments US officials pressed ahead with a planned visit by Arthur Dean, who had again been appointed to lead the US delegation at Geneva. Dean had recently decided to visit various East Asian capitals to gain support for the American proposal at the upcoming conference. That proposal, which was based on the one the Americans had presented during the first conference, would have fixed the width of the territorial sea at 6 miles and provided for a contiguous 6-mile-wide zone in which foreign states would be allowed to continue to fish at the same level at which they had fished in the recent past. The US government had no hope that Indonesia would vote for the US proposal, but it held out the faint hope that it might be persuaded to abstain when the proposal came to a vote.35 On 18 January Subandrio told Howard Jones that he would be willing to receive a delegation and on 27 January (thus after cabinet approved the draft regulation) Jones wrote to Subandrio to confirm the arrangements.36 Dean and two other US officials spent the first two days of February in Jakarta talking with Subandrio and other Indonesian officials. Dean called on every argument he could think of to convince the Indonesians that enacting the principles in the 1957 declaration would undermine Indonesia’s interests. Subandrio and his colleagues listened politely. At this point the Americans were not at all sure what the status of the draft regulation was. Subandrio would only say that it was “under preparation”.37 Dean hoped

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that at the very least Indonesia would not enact the bill before the conference. In response Subandrio, according to a British account, “expressed the view that it would generally be to Indonesia’s advantage to keep her position fluid until the Geneva Conference, and said he would do what he could to that end, but that he was not a policy maker but an executive in this matter”.38 This left the Americans with a glimmer of hope that the government would not act immediately. The US Embassy’s view was that ultimately Indonesia’s position would “depend on Subandrio’s ability and willingness to influence Sukarno”.39 Immediately after the meeting Dean sent Subandrio a memorandum recapitulating the reasons he believed the Indonesian government should not go forward with a law. He emphasized the obligations states had to patrol their maritime realms and maintain navigational aids, described the risk foreign submarines posed to Indonesia’s neutrality (he made no mention of the dread the US government had that Soviet submarines might hide in waters claimed by Indonesia), and, more broadly, stressed the “embarrassment” Indonesia faced if it failed to meet its obligations under international law. At the same time, he tried to flatter the Indonesians with the vision that one day they too might be a great maritime power with an interest in the freedom of the seas. As if expecting none of these arguments to make an impression, Dean added that the question of archipelagos was not on the agenda of the upcoming conference and that any attempt to gain international recognition for claims such as Indonesia’s would go down in defeat.40 There is no record of how Subandrio reacted to these not too subtle arguments motivated by US interests, though according to one source he really did try to prevent the regulation from being issued before the conference.41 For some time foreign embassies had no idea what was happening. Whether the bill was or was not now law, wrote an exasperated British Embassy officer a week after Dean’s visit, “is impossible to discover”.42 Then sometime in February or early March Sukarno signed the bill into law as Government Regulation in Lieu of a Law No.4 of 18 February 1960. Because the regulation was not made public until 8 March foreign officials speculated that it had been backdated to 18 February to avoid the appearance that Sukarno had signed it during a state visit by the Soviet premier, Nikita Khrushchev, who according to Dean had urged Subandrio not to listen to Dean’s advice.43 It is also possible that Sukarno actually did sign the regulation on 18 February; during the weeks when it was waiting for news about the regulation the British Embassy observed that the Indonesian government often did not get around to informing the Indonesian public and the world at large about new laws until sometime after they had been promulgated.44 But, as foreign officials themselves observed, all that now mattered was that the principles in the declaration of 13 December 1957 were now law. On the eve of the conference the Indonesian government had left other governments in no doubt about where it stood.

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After recapitulating the vision of Indonesia conveyed in the declaration (“since time immemorial the Indonesian archipelago has constituted one entity”), Regulation No.4 enacted the substance of the declaration in four brief articles.45 Article 1 defined “Indonesian waters” as consisting of the territorial sea and internal waters of Indonesia, fixed the width of the country’s territorial sea at 12 miles, “the outer limit of which is measured perpendicular to the baselines…which consist of straight lines connecting the outermost points on the low water mark of the outermost islands”, and stated that all waters within those baselines had the status of internal waters. (Contrary to Mochtar’s proposal it made no distinction between those waters that had the status of internal waters before the drawing of the straight baselines and those that had that status afterwards.) Article 2 referred to a map that indicated the endpoints of the baselines, but because of the rush to announce the regulation before the conference officials had not yet prepared this map. Article 3 stated that innocent passage though Indonesia’s internal waters was “open [terbuka]” to foreign vessels but then added that the government would issue an ordinance regulating innocent passage at a later date. A brief explanatory note issued with the regulation, however, did hint at what might be in that regulation: [I]nnocent passage of foreign ships in interior waters [internal waters] constitutes a certain facility46 granted intentionally by Indonesia, while innocent passage in territorial waters constitutes a right of the foreign ships which is recognized by international law. In other words in the case of interior waters, Indonesia has the right to withdraw the given facilities, while in the case of the territorial waters [territorial sea], no coastal country is in principle entitled to interfere with innocent passage.47 Passage through the Java, Flores, and Banda Seas as well as through the straits between Indonesia’s islands would be, so the memorandum seemed to say, entirely at the discretion of the Indonesian government. Finally, article 4 made it clear that those paragraphs in the Territorial Sea and Maritime Districts Ordinance of 1939 that defined Indonesia’s territorial sea and internal waters were no longer valid. The implication was that all the other provisions of that ordinance such as those concerning the declaration of maritime districts were still valid.

BACK TO GENEVA The Second United Nations Conference on the Law of the Sea began in Geneva on 17 March, barely a week after Regulation No.4 became known to the world at large. The only issue on the agenda was the width of the territorial sea and any contiguous fisheries zone. The leaders of the Philippine and Indonesian delegations,

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Arturo Tolentino and Ahmad Subardjo, both reminded the conference of their archipelagic claims but only in the context of debate about the width of the territorial sea. Tolentino supported the conference’s efforts to agree on a rule regarding the width of the territorial sea but after explaining how (according to the Philippines) the Treaty of Paris had given the Philippines sovereignty over all the water within the treaty lines strenuously argued that such a rule “cannot adversely affect archipelagoes which have a legal and historic basis for the measurement of its territorial waters, such as the Philippines”. After all, the Philippine archipelago, “a compact closely-knit group of islands connected together on a single submarine platform”,48 had been “considered as a single unit” since “time immemorial”. It was, he concluded, “unthinkable and impossible” for the Philippines to support any proposal that in any way impaired “our historic rights” and that could be “used as an excuse by foreign vessels and fishermen to penetrate with impunity into the very heart of our archipelago”.49 Representing a state that was now one of many with a 12-mile-wide territorial sea, Subardjo did not try to portray Indonesia’s position as unique. He used most of his statement to argue that states should be allowed to fix the width of their territorial seas between 3 and 12 miles but he concluded by supporting Tolentino’s statement and calling for “a special regime for territorial waters in connexion with the archipelagoes”. The problem, he added, “can no longer be ignored” since some states such as the Philippines and Indonesia had already enacted legislation proclaiming their status as archipelagic states.50 He stopped short of suggesting that this issue be dealt with during the conference. There was no further discussion of archipelagos during the formal sessions. The great battle of the conference was between two views on the width of the territorial sea. On one side were those states led by the United States and Canada that proposed some variation on the idea of a 6-mile-wide territorial sea and a contiguous 6-mile-wide fisheries zone. On the other were those states such as Indonesia proposing that the territorial sea could be as narrow as 3 miles or as wide as 12 miles and that states claiming territorial seas less than 12 miles wide should be entitled to claim exclusive fishing rights out to a limit of 12 miles. At the heart of this battle was the determination of the Western maritime powers led by the US to fight acceptance of 12 miles as the width of the territorial sea. In his opening statement Arthur Dean used a vast array of arguments against the 12-mile limit. As well as mounting the usual case in favour of the freedom of the seas he tried to highlight the practical problems associated with the 12-mile limit. He suggested, for example, that most merchant ships and fishing vessels would not be able to carry chains long enough to allow them to drop anchor in the very deep waters generally found at such a great distance from shore.51 As other delegates understood, however, the main issue was the strategic interests of the United States. The US could accept a width of 6 miles if it really had to but 12 miles was intolerable. As the USSR continued to build up its submarine fleet US officials became even more alarmed at the prospect of Soviet

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submarines using the territorial seas of neutral states “for undersea transit…to reach the scene of their attack—the routes of supply and convoys” and those same waters as “a relatively safe haven from counterattack”. Because many coastal states were trying to apply various restrictions such as prior notification to the innocent passage regime the US feared that the adoption of 12 miles as the width of the territorial sea would greatly restrict the mobility of its warships through important straits; it calculated that if there was a general adoption of the 12-mile limit about 116 important “international straits” would no longer have high-seas passageways. Acceptance of the 12-mile limit would make it more difficult to gather intelligence. It would also defeat the whole purpose of displays of force, since US warships would be too far out to sea to be seen by people on the shore. Then there was also the fear about the implications of acceptance of a 12-mile limit for other claims such as those by Indonesia and the Philippines. “A resolution of the question of the breadth of the territorial sea…on a basis most conservative of the traditional law,” the State Department told all its diplomatic posts on 1 March, “would reduce the likelihood these claims will be pursued.”52 On the eve of the conference the government had concluded that “Adoption of a 12-mile limit by the Conference would be a major diplomatic and military defeat for the US”.53 In the end, the conference failed again to reach agreement on the breadth of the territorial sea. Indonesia and the Philippines joined sixteen African, Middle Eastern, and Latin American in sponsoring a proposal allowing a breadth up to 12 miles and exclusive fishing rights out to the same limit. A key element of the proposal, essential for the Philippines’ support, was a clause asserting that the provisions regarding the width of the territorial sea did not apply to “historic waters”.54 This proposal failed to gain a majority in the Committee of the Whole (the entire conference meeting as a committee). In contrast, a joint Canadian-US proposal based on the idea of a 6-mile territorial sea and a contiguous 6-mile wide zone in which, unlike in the original US proposal, the coastal state would have exclusive fishing rights after a certain period did win a clear majority and was therefore adopted by the committee. In Jakarta a Foreign Ministry spokesman announced that Indonesia would vote against the proposal when it was considered in plenary session and that it would be “impossible” for Indonesia to sign it if the conference decided to adopt it.55 As it happened, when the conference president put an amended version of the proposal to a vote in plenary session on the final day of the conference, 26 April, it failed by just one vote to obtain the two-thirds majority required for adoption. Immediately after the vote on the joint proposal the delegates considered a proposal of which Indonesia was one of ten sponsors asking that the UN General Assembly hold another conference on the question of the breadth of the territorial sea, calling on any state formed before October 1945 not to extend the present breadth of its territorial sea until the General Assembly had considered this issue, and allowing all states to exercise exclusive fishing rights out to 12 miles pending the General Assembly’s consideration of the issue.56 An

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unstated implication of the proposal was (as Arthur Dean later put it) that those states formed after October 1945 “apparently could extend their territorial seas without limit”.57 Moments after this proposal was soundly defeated Dean moved that the conference reconsider the joint Canadian-US proposal but that motion fell a few votes short of a two-thirds majority. In closing the conference the president expressed “great regret” at the failure of the conference to resolve the two questions it had considered. A solution would, he said, require “a delicate adjustment of the respective interests of the coastal State and the States concerned in the freedom of the seas”.58 That adjustment appeared to be a very long way off. *** By the time the conference had started the governments of the Western maritime powers and Japan had been discussing whether to lodge protests against Regulation No.4. In Australia and the UK this question took on considerable urgency because of the planned passage of a flotilla of Australian and British warships through the Lombok and Karimata straits on 10 April on their way to a SEATO exercise. Since Subandrio had spoken with the Australian ambassador on 1 April 1959, these governments had yet to finalize a policy regarding the circumstances in which they would notify the Indonesian authorities when their warships were about to pass between the islands making up Indonesia and the best means of providing that notification. They had, however, begun informally notifying the Indonesian authorities of the passage of their warships in certain circumstances, and because of the large number of ships involved they intended to provide some sort of notification in the case of the passage planned for 10 April. The Australians were particularly concerned to do this because they did not want anything to mar plans for one of their ships, the aircraft carrier Melbourne, to visit Jakarta in June. They also wanted to avoid any provocation that might jeopardize upcoming negotiations about Qantas flights over Indonesian territory. At the same time, however, both governments wanted to make certain that any notification that they gave Indonesia about the planned passage could not in any way be taken as implying acceptance of Regulation No.4. They therefore decided that even though they did not want to do anything that might harden the stand Indonesia was taking at the conference they should immediately lodge protests against the regulation. There was a flurry of activity as the Australians and British drafted protests and tried to settle on a policy regarding notification. The Australian government informed Indonesia on 1 April that it could not accept Regulation No.4 and would in no way be bound by its provisions.59 A few days later the two governments, with the help of their delegations in Geneva and in consultation with New Zealand and US officials, agreed on three principles regarding notification. First, they would give prior notification, “as a courtesy, of unusual routes, unusual exercises or unusual concentrations (three or more ships) in waters

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close to Indonesian territory”. By “unusual routes” the two governments meant routes not listed in the British Admiralty’s handbook Ocean Passages of the World. They used the phrase “close to Indonesian territory” to avoid any reference to Indonesia’s claim and emphasized “as a courtesy” to indicate that they were under no obligation to provide notification. Second, there would be no notification of “routine passages”. That meant, for example, that the governments would not notify Indonesia about the planned passage of one or two warships through the Sunda or Lombok straits. And, third, there would be no notification of naval movements “to theatres of military action”.60 The Australian and British governments also agreed that when notification was provided it would be given as informally as possible and about 48 hours before the planned passage. With these principles in place the Australian and British military attachés in Jakarta informed Indonesian officials of the impending passage, which took place without incident. Finally, on 12 April a Foreign Office official handed over UK’s protest note to the Indonesian ambassador, adding that the UK “deplored” the fact Indonesia had issued the regulation before the conference.61 The Indonesian ambassador’s only response was to remark that “the Indonesian Delegation at Geneva will find it very difficult to accept any compromise”.62 And, as we have seen, so it proved, with Indonesia combining forces with like-minded delegations to defeat the Canadian-US proposal by a single vote.63

THE MAP On 4 April, the day of Subardjo’s statement to the Committee of the Whole, the Indonesian delegation at Geneva provided the conference with a full version of the regulation (referred to as “Act No.4”).64 Of most interest to other delegations were the accompanying annex and map. The annex finally listed the coordinates of the endpoints of the straight baselines that encircled Indonesia65 and the map provided a graphic representation of these baselines. Although the declaration had announced that the straight baselines would join “the outermost point of the outermost islands”, foreign governments and observers had never been sure exactly what this meant. “Taking the announcement literally”, The Times observed immediately after the declaration, “Singapore and Malaya could be said to rise out of Indonesian seas and enjoy no maritime jurisdiction whatsoever”,66 since it would have been possible to draw a straight baseline from Natuna in the South China Sea across the Malay Peninsula to the northern tip of Sumatra. Foreign governments never believed that the Indonesian government intended to deprive other states of their territorial seas. Even so, they knew there were many ways to translate the words of the declaration into lines on a map. Figure 5.1 shows an American attempt to imagine where the lines might be drawn both if the Indonesians disregarded West New Guinea and if they included it as part of Indonesia. Either way, the defining

Figure 5.1 Indonesia’s straight baselines as speculated by the US government, 1959

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characteristic of this attempt was a small number of very long lines. One line, for example, stretched about 530 miles from the land border between Indonesia and North Borneo across the Celebes Sea to the Talaud Islands, while another ran about 1000 miles from Tanjung Genteng on the southwest coast of Java all the way to Roti off the southwestern tip of Timor. The lines based on the possibility that West New Guinea belonged to Indonesia included one stretching from the most northerly point on the land border between West New Guinea and Papua to the Talaud Islands, a distance of about 950 miles. Of special interest is that the cartographer used a total of only three straight baselines to delimit Indonesia’s claim in the South China Sea. The overall effect of using so few straight baselines was to enclose the maximum possible area of sea. The map that Indonesian officials prepared to accompany Regulation No.4—figure 5.2—differed markedly from the one prepared by the US government. Not surprisingly, it did not consider the possibility that West New Guinea might not be part of Indonesia. Instead, it showed Irian Barat (West Irian), as the Indonesians called it, as an integral part of the nation-state. Much more surprisingly, it encircled Indonesia in a large number of lines that were on average much longer than those approved by the ICJ in the Anglo-Norwegian Fisheries case but nevertheless very much shorter than those on the map prepared by the US government. Altogether there were 196 straight baselines extending a total of 8168 miles. The two longest lines—one across the northeastern entrance to the Maluku Sea and the other running from the north coast of Irian Barat to Mapia Island—were 124 miles long.67 No record survives of the principles that Indonesian officials used in preparing the map, but the map itself shows that with a few insignificant exceptions they used the shortest lines that they could that would still create a united territory. According to Hasjim Djalal, who joined the Foreign Ministry soon after the map was drawn, “If we could do it with short lines, we would, but if it took long lines we used long lines.”68 The effect of applying this principle was to minimize the area enclosed by the straight baselines. That effect was accentuated by a desire to achieve the government’s goal with as little impact as possible on Indonesia’s neighbours. “We did not want to provoke an antagonistic reaction,” recalls Djalal. This intention was most apparent in the way the Indonesians dealt with the waters between Sumatra and Borneo (Kalimantan). Instead of enclosing all these waters within the system of straight baselines the Indonesians drew the straight baselines in a way that left much of that area as high seas. This was done, according to Djalal, to accommodate the Singaporean and Malayan fishermen who operated in these waters. Nevertheless, the system of straight baselines still encompassed (as a British official commented when he first saw the map) an “enormous” area.69 Regulation No.4 roughly doubled the total area of land and sea over which the government claimed sovereignty. The area of the internal waters enclosed by the straight baselines amounted to about 666,000 square (nautical) miles, while the band of the territorial sea extending 12 miles out from

Figure 5.2 Indonesian waters according to the map accompanying Law No.4 of 1960

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these baselines covered about 98,000 square miles,70 making a total of about 764,000 square miles. Now about 56 percent of the country’s total area of approximately 1,354,000 square miles was sea. The hydrographer in charge of drawing the map accompanying Regulation No.4 was Mas Pardi, who had received training in hydrography in Liverpool in the 1930s and had, as we have seen, served as deputy head of the Indonesian delegation to the 1958 conference.71 As his base map Pardi joined two small-scale (1:3,000,000) Dutch charts of the Oost-Indische Archipel—one dated 1954 showing the western part of the archipelago and one dated 1953 showing the eastern part to as far east as the Bird’s Head of New Guinea—and (presumably because no chart of the same scale was available) a blank sheet of paper covering the eastern part of West Irian. He then referred to large-scale charts to locate as precisely as he could the outermost points of the outermost islands—many barely visible as islands on the base map—so that he could use them as turning points in the system of straight baselines. Using these charts Pardi worked out (probably with an exaggerated degree of accuracy) the coordinates of the turning points to within one-tenth of a minute.72 Having identified the turning points, he then marked them on the base map and drew straight baselines between them. This was the map that was presented to cabinet. Finally, Pardi transferred the straight baselines on the base map to a map that had a scale half that of the base map (namely, 1:6,000,000); at some point someone wrote the legend and all the place names on the map by hand. This map was then reproduced and circulated to foreign governments as well as to delegations at the conference. Rudimentary though it was, the map fulfilled the government’s objective of making the extent of its claim known to the world. The map fulfilled a further objective as well. It was the first official portrayal of Indonesia as a single entity rather than a collection of islands separated by high seas. It made Indonesia whole. But this remained a purely Indonesian vision of Indonesia. As far as the Western maritime powers were concerned the waters between the islands making up Indonesia remained high seas. There was, it seemed, no prospect of that ruling status being overturned in the foreseeable future.

CHAPTER 6

Confrontations Confrontations

At the end of March 1960, just as the second Geneva conference was getting underway, the Netherlands Ministry of Defence announced that it would send its only aircraft carrier, the Karel Doorman, as well as two destroyers and an oil tanker on a flag-showing mission to West New Guinea. The announcement caused an uproar in Indonesia. Earlier, as we have seen, Subandrio had warned the Dutch that any attempt to send a warship through “Indonesian waters” would be regarded as a casus belli. After the announcement, Martadinata proclaimed that the Indonesian navy stood ready to “defend and protect the sovereign totality of the whole of the Republic of Indonesia’s water territory”.1 Amid much fanfare the navy and air force conducted a war exercise codenamed Waspada (Vigilant) in “eastern Indonesian waters” in May.2 This turn of events deeply alarmed US officials. “Despite [the] legal right [to] traverse [the] Java Sea or East Indonesian waters,” the acting head of the American Embassy in Jakarta reported to the State Department, any “attempt to do so [is] certain to be taken here as virtually direct aggression.”3 Fearing that this provocation would strengthen the position of the PKI and encourage the Indonesian government to turn to the Soviet Union for arms, the US government put immense pressure on the Dutch to avoid sending the carrier directly through the archipelago. In the end, the Karel Doorman reached New Guinea on 1 August after sailing all the way around Australia rather than through the Java, Banda, or Arafura seas. Even so, the Karel Doorman had entered what the Indonesians regarded as their sovereign territory; it had also delivered a number of turbojet fighters to bolster Dutch forces in West New Guinea. On 17 August the presence of the Karel Doorman as well as steps taken by the Dutch to establish West New Guinea as an independent state provoked Sukarno to sever diplomatic relations with the Netherlands. Under pressure from Indonesia the Japanese government cancelled the Karel Doorman’s planned visit to Yokohama. Eventually the ship returned to the Netherlands by way of Cape Horn,4 having achieved little beyond strengthening Indonesian resolve and reinforcing the view US officials had that “it is in our over-all interest that the Dutch eventually get out of West New Guinea”.5 In the midst of this turmoil it appears the Indonesian cabinet gave little or no attention to the outcome of the conference. Nor did it take any steps to deal with 115

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two important items of outstanding business: ratification of the three conventions on the law of the sea that Subardjo had signed after the first conference and preparation of the regulation concerning innocent passage promised in Regulation No.4. In August, at the very height of the Karel Doorman affair, it did, however, establish a body to be called the Maritime Council (Dewan Maritim) with the express purpose of coordinating the government’s various maritime activities.6 This body replaced a body set up only at the end of 1959, the Sea Transportation Council (Dewan Angkutan Laut), that had had a much more restricted scope but it appears to have been modeled to some extent on an earlier unofficial body, the Indonesian Maritime Council (Dewan Maritim Indonesia), that had advised the government on a wide range of subjects.7 The chairman of the new council was to be the first minister (Djuanda), while the position of vice chairman was to alternate between the naval chief of staff (Martadinata) and the minister of sea communications. Reflecting the council’s ambitions, the membership of the council included the foreign, national security, primary industry and mines, agriculture, trade, and finance ministers. The regulation establishing the council charged it with making proposals in the formulation of national maritime policy, drafting maritime regulations and overseeing the implementation of such regulations, and exercising a coordinating role. The regulation gave the council the authority to establish “technical committees” to give it advice and undertake planning on its behalf. These committees were to be made up of expert advisers from outside the council as well as members of the council itself. Among the various technical committees that the council decided to form was one focused specifically on legal issues. Martadinata had himself appointed chairman of this committee; he also ensured that Mochtar, who by this time was conducting research for a PhD thesis on the question of the breadth of the territorial sea, became a member. Sometime early in 1961 Martadinata asked a young Foreign Affairs official, Hasjim Djalal, to serve as the committee’s secretary.8 Djalal, who had grown up in Bukittinggi, West Sumatra, and attended the Foreign Service Academy in Jakarta, had just returned to Indonesia after writing a PhD dissertation titled “The limit of territorial waters in international law” at the University of Virginia. His interest in maritime claims arose largely because of his commitment to the sense of national unity embodied in the December 1957 declaration. “I was very upset that Indonesians could drop bombs on other Indonesians,” he later recalled, referring to the outbreak of the PRRI rebellion, which occurred while he was studying in the US. “‘Why did they drop bombs on each other?’ I wondered. It seemed that at that time people still identified themselves with their islands and ethnicity rather than with Indonesia.”9 His dissertation presented arguments supporting not only Indonesia’s archipelagic declaration but also the right of governments generally to make such declarations. “If it is admitted that the determination of the extent of territorial waters should be decided by the national interest, tempered by international interest,” he wrote, “it

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should follow that unilateral declaration of the extent of territorial waters should be admitted, because the coastal state knows its interest best.”10 He therefore was right from the beginning of his association with the legal committee a staunch defender of Indonesia’s claim, collaborating closely with Mochtar, who sought Djalal’s advice while writing his own thesis.11 Over the course of 1961, by which time Regulation No.4 had become Law No.4 after parliament rubberstamped all the regulations the government had issued in lieu of laws up to the end of 1960, the committee turned its attention to the two items of outstanding business, namely, ratification and an innocent passage regulation. The first of these tasks was fairly straightforward. The legal committee completed the work begun by the interdepartmental committee12 of translating the three conventions that Subardjo had signed—those concerning the high seas, fisheries on the high seas, and the continental shelf—into Indonesian. At some point the legal committee, the council, or the government itself decided that the government should ratify the conventions but only with a reservation. That reservation simply stated that wherever the terms “territorial sea” and “internal waters” appeared in the conventions the government would interpret them in accordance with Law No.4 of 1960. Thus, for example, as far as the government was concerned, the high seas began beyond the 12-mile-wide band of territorial sea extending out from the system of straight baselines it had drawn around Indonesia rather than 3 miles out from the low-water line around each of its islands. Similarly, in the government’s view, Indonesia’s continental shelf lay beyond its territorial seas rather than including, for example, the seabed below the shallow waters of the Java Sea, which the government regarded as internal waters. Assuming the assent of the docile parliament—only later formally obtained—the government deposited its ratification with the UN secretariat in August 1961. In the event, the secretariat rejected Indonesia’s ratification of the continental shelf and fisheries conventions on the grounds that the reservation violated certain articles in those conventions that expressly prohibited any reservations.13 However, the secretariat did accept its ratification of the High Seas Convention, whereupon the UK and US lodged formal objections against Indonesia’s reservation.14 The government had little control at this stage over how other states might view its claim but it could take steps to reinforce it at the national level. This it did when the legal committee turned its attention to the other item of outstanding business, an innocent passage regulation.

REGULATION NO.8 Although the government had already announced in Law No.4 its intention to issue an innocent passage regulation, the task of actually issuing it was given greater urgency by the escalation of the dispute with the Netherlands over West New

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Guinea during 1961. In January the Dutch authorities held elections for a New Guinea Council, in October Papuan leaders began making plans for an independent state, to be called West Papua, with its own flag and anthem, and in November the Dutch formally recognized these symbols of the future state. In large part to prepare for likely all-out war with the Netherlands the Indonesian government turned (as the Americans had feared) to the Soviet Union to acquire new military hardware, particularly warships and aircraft. The first warships arrived in October when the commander-in-chief of the Soviet navy, Admiral Gorshkov, personally delivered a number of PT boats to Indonesia. During the latter part of the year the Indonesian military began infiltrating small fighting units into West Irian. In this atmosphere of an impending clash the legal committee held its final discussions on an innocent passage regulation. According to Djalal, not everyone who had an interest in this issue wanted to go ahead with the regulation: “Why should we make such regulations if we can’t enforce them?” some asked. I argued like this: Look, which is better—to have power with no right or to have a right with no power yet?15 In the event, Djalal’s view prevailed—what mattered was the right. On 27 December, a few days after Sukarno had “command[ed] the people of Indonesia, including those in the region of West Irian” to unfurl the Indonesian flag in West Irian and “prepare for a general mobilisation in order to defend the freedom and unity of the Territory and Nation”,16 cabinet discussed the draft and, after making “changes as needed”, approved the regulation.17 Less than three weeks later, as the regulation awaited the president’s signature, an event took place that demonstrated that, whatever the rights Indonesia asserted might be, its power was extremely limited. On 15 January 1962 vessels of the Dutch navy easily defeated Indonesian navy vessels in a battle near the Aru Islands. About fifty sailors were killed including the deputy chief of staff of the navy, Yos Sudarso, who had failed to arrange air cover for the operation. As well as showing just how weak the navy was in both personnel and equipment,18 this crushing blow aroused anti-Dutch sentiments to new levels. Yos Sudarso and the other dead seamen became national heroes, as did the sailors the Dutch rescued after the battle. As these events unfolded, the Australian, UK, and New Zealand governments were again forced to deal with the problem of whether and, if so, under what circumstances to provide prior notification of the passage of their warships. In January, presumably just after the sea battle near the Aru Islands, Subandrio “suggested” (without making any reference to the still unsigned innocent passage regulation) to the British ambassador that “in the present tense period” the Indonesian government be notified of the passage of all British warships.19 Much as officials in the three Commonwealth governments balked at this “suggestion”, they had to take it seriously, both because it came from the foreign minister himself

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and because they wanted to do everything they could to avoid further inflaming the political situation in Indonesia. The first of the three forced to decide what to do was the New Zealand government, which was planning to send HMNZS Otago through the archipelago. Under the guidelines being worked out by the three governments there was no need to notify the Indonesians of the passage of the Otago, since it was planning to sail on its own along a “normal” route. Australian officials in particular opposed notifying the Indonesians but felt duty bound to inform their New Zealand counterparts that secret sources had informed them “that the Indonesians would be challenging all shipping in what they regarded as their waters and taking action where satisfactory responses were not received”.20 In the end the New Zealand government did notify the Indonesian authorities of the impending passage of the Otago. Indeed, a short time later the Australian government did the same in relation to the passage of HMAS Diamantina. In March it also notified the Indonesians that its aircraft carrier, HMAS Melbourne, would be passing through the archipelago, justifying that notification to itself on the grounds that the Melbourne was a sister ship of the Karel Doorman.21 Finally, in May, the British naval attaché informed Indonesian authorities that, even though the British were under no obligation to provide advance notification of the passage of warships engaged in innocent passage, they would do as Subandrio had “suggested”, though only during the current time of great tension.22 During this period the Indonesian navy was undergoing a remarkable transformation. Over the course of 1962 the navy received a cruiser (its first), a destroyer, two frigates (its first), six submarines chasers (it had had two), ten submarines (it had had two), and six more PT boats from the Soviet Union. The bulk of these were delivered in the first half of the year; indeed, four of the submarines had already been deployed off West Irian by 20 July.23 Thus, by the middle of 1962 the government’s ability to enforce its authority at sea was far greater than it had been at the start of the year. Whether for this reason or simply because the time had come to tidy up outstanding business the president finally signed the innocent passage regulation on 25 July 1962. Three days later it became Regulation No.8 of 1962.24 The regulation and the accompanying explanatory note began by dealing with a serious flaw in Law No.4. Contrary to the advice Mochtar had given the interdepartmental committee in his memorandum of 1 January 1960 Law No.4 declared that innocent passage was “open” in Indonesia’s internal waters without distinguishing between those areas such as bays and river mouths that were already internal waters according to the Territorial Sea and Maritime Districts Ordinance and those areas such as in the Java Sea that became internal waters as a result of the law. It therefore opened up to innocent passage waters that previously had not been subject to the innocent passage regime. The regulation corrected this mistake by declaring that innocent passage25 would be “guaranteed [dijamin]” in those internal waters that had been high seas or territorial sea before Law No.4

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came into effect. In keeping with the government’s understanding of international law, the regulation immediately reduced that area by declaring that its various provisions would not apply to the waters of bays and river mouths less than 24 miles wide. (Under the Territorial Sea and Maritime Districts Ordinance the waters of a bay or river mouth had had the status of internal waters but only out to the point where it was 10 miles wide.) Nevertheless, the area where the government “guaranteed” innocent passage still amounted to at least nine-tenths of the internal waters as defined by Law No.4. The note accompanying the regulation explained that innocent passage was also “open” to foreign vessels in the band of territorial sea created by Law No.4, namely, the sea extending 12 miles out from the straight baselines. Having defined the waters to which it applied, the regulation set out what the government meant by “innocent” passage. First, a ship had to be engaged in an “innocent” purpose. Second, it had to travel directly through the archipelago along an internationally recognized shipping route or directly to and from an Indonesian port. It could not stop, hover, or anchor without a “valid” reason; this stipulation applied not only to “Indonesian waters” but also to the high seas within 100 miles of these waters. And, third, passage would be regarded as “innocent” as long as it did not violate the “security, public order, [or] interests” or “disturb the peace” of the republic. As if to leave no doubt about the meaning of this last criterion, the explanatory note added that the passage of any vessel found to be “endangering the peace, security, public order, [or] national interests” would no longer be regarded as innocent and for that reason would “no longer be guaranteed”. In addition to defining innocent passage in this manner the regulation tightened the government’s authority over the waters it claimed in a number of other ways. It gave the president the right to temporarily prohibit passage through certain areas to protect the “sovereignty and security” of the Indonesia. It demanded that foreign fishing vessels passing through Indonesian waters stow all their fishing gear in their holds and sail along sea lanes fixed by the naval chief of staff (though it gave no hint of when he might announce these lanes). Finally, of most importance to Western maritime powers, the regulation required foreign warships to notify the navy chief of staff of their passage before sailing through Indonesian waters. If the chief of staff were to announce special sea lanes for foreign warships, warships would be able to sail along these sea lanes without prior notification, but, so the regulation implied, the requirement would remain in place until that happened. The regulation required submarines to sail on the surface. Any foreign warship that failed to give prior notification and any foreign submarine that ignored the requirement to sail on the surface could, according to the regulation, be required to leave Indonesian waters immediately. Unlike Law No.4, under which innocent passage was “open” to foreign ships as a “facility”, the regulation declared such passage to be “guaranteed”. Nevertheless, its every phrase conveyed the message that the government regarded it as a

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concession. Taken together, an official at the US Embassy in Jakarta remarked, Law No.4 and Regulation No.8 “provide a concept of territorial seas almost totally at variance with American ideas and practice”.26 That concept was in fact almost totally at variance with the ideas and practice of all the Western maritime states. *** In August there was a breakthrough in the West Irian conflict when under pressure from the United States as well as the Indonesian military build-up the Netherlands agreed to transfer control over the territory first to the United Nations and then to Indonesia. As well as a cause for great celebration for Indonesians this event brought a sense of immense relief to the Western maritime powers. In the case of the three Commonwealth states it meant, among other things, that the policy of notifying the Indonesians about the passage of every warship passing through the archipelago could be regarded as having lapsed. By this time they had finally arrived at a common policy concerning notification. Except for a few refinements (such as referring to the waters through which the ships would pass as “waters in the neighbourhood of the Indonesian coast”) the policy was the same as the one they had worked out in some haste in April 1960.27 In keeping with the practice of not providing notification when only one or two ships were transiting the Australian navy sent warships through the Sunda and Lombok straits on three occasions between October 1962 and January 1963 without informing the Indonesian authorities.28 Despite the requirement in Regulation No.8 that all foreign warships provide prior notification when sailing through “Indonesian waters” the Indonesians did not object to any of these passages. But this period of relative tranquility did not last long for the Commonwealth countries. In February an Indonesian Gannet anti-submarine aircraft asked two Australian warships transiting the Sapudi Strait (to the east of Madura) whether they had permission to be where they were. The Australians refused to reply. When, immediately after this incident, an Indonesian naval officer asked the Australian naval attaché where the ships were headed and whether he had been aware of the passage, the Australian replied that they were on their way to Singapore and that he had indeed been aware of the passage and, furthermore, that Australia was under no obligation to ask for permission.29 On 1 May 1963 West Irian was, as Indonesian accounts describe it, “returned to the lap of the Motherland”, though on the understanding that a plebiscite would be held in 1969 to determine whether its people wished to remain in Indonesia or establish an independent state. The apparent resolution of the dispute that had provided much of the impetus to the government’s maritime claim did not, however, slow its efforts to extend its authority over “Indonesian waters”. By this time the government was in fact embroiled in another international dispute that raised basic questions about the nature and extent of Indonesia’s jurisdiction

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over the sea. Sukarno vehemently opposed plans being made by the British and Malayan governments to combine the British dependencies of Singapore, Sarawak, Brunei, and North Borneo with the states making up the Federation of Malaya to form a new state, to be known as the Federation of Malaysia. Sukarno saw this plan as blatant imperialism, since the British planned to maintain a naval base in Singapore and retain their economic interests in the new state and since, as he saw it, the British and their Malayan accomplices were denying the peoples of the three Borneo territories the right to decide their destinies themselves. In January 1963 Subandrio announced that Indonesia was adopting a policy of “Confrontation” towards Malaya. Also objecting to the plan was the Philippines, which laid claim to North Borneo. In May, as tensions with Indonesia mounted, the British government considered the possibility of resurrecting the policy of notification of all transits that it had put in place as a result of Subandrio’s request in 1962 but appears to have quickly dropped that idea.30

DECISION NO.103 Sometime during these events the legal committee began discussing a measure to strengthen still further the navy’s authority over “Indonesian waters”. The result was an audacious presidential decision, No.103 of 1963, signed by Djuanda as acting president on 27 May. In 1963 the various maritime districts that the Dutch governor-general had declared under the Territorial Sea and Maritime Districts Ordinance remained in place. These districts, as we saw in chapters 1 and 2, extended 3 miles out from the coast of a few strategically sensitive areas such as the Sunda Strait and certain ports. The presidential decision declared all the waters covered by Law No.4 to be a single maritime district.31 This meant that all the provisions that had previously applied only in the specific places listed in Dutch ordinances now applied to the entire maritime territory of Indonesia. Thus, the government now banned all hydrographic surveys, photography, and even drawing anywhere in Indonesian waters. The naval chief of staff now had the authority to restrict or ban shipping anywhere in those waters, while no foreign military personnel were allowed to enter any of the waters covered by Law No.4 without his permission.32 Taken to the extreme, the provisions implied by the presidential decision went far beyond Regulation No.8. Foreign governments appear to have been quite unaware of the implications of this decision.33 As he had been in every major decision concerning Indonesia’s maritime territory since 1957, Mochtar was involved in the deliberations leading to Decision No.103. But this time he was not involved in any official capacity. Mochtar had had a meteoric rise since taking up a lectureship at Padjadjaran University. He had completed his PhD thesis, become a professor, and been appointed dean of the law school, all by the age of thirty-three. Then sometime in October or early

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November 1962, on the occasion of a lecture at the university by a senior minister, Mochtar had said that Sukarno was less experienced in international affairs than the prime minister of India, Jawaharlal Nehru. When the president, who had arrested several of his political opponents earlier in the year, was told of Mochtar’s remark while on a visit to Japan, he immediately had him dismissed from the university. Both Djalal and Martadinata hoped that Mochtar would be able to continue as a member of the legal committee. When Djalal drove to Bandung in a navy jeep to talk with Mochtar he learned that that was out of the question.34 This did not immediately end Mochtar’s contribution to the committee’s work, however, as Djalal was “able to maintain contact with him, mainly by visiting him at his home in Bandung”,35 where a teaching position at the army staff college offered him some protection from those who believed he had not been adequately punished. During one of these visits Mochtar expressed his support for plans to take the step announced in Decision No.103.36

HMS VICTORIOUS For a brief period it looked as if the dispute over the formation of Malaysia would be resolved. In an accord signed in Manila in early August 1963 Indonesia, Malaysia, and the Philippines agreed that there would be a referendum in which the people of Sarawak and North Borneo (the sultan of Brunei had just decided not to join Malaysia) would be given the chance to decide whether or not they wanted to be part of Malaysia. Even before the results of the referendum had been announced, however, the British and Malayan governments pressed ahead with the formation of Malaysia. In response the Indonesian government refused to recognize the new state, rioters in Jakarta sacked and burned the British Embassy, and on 25 September Sukarno repeated an earlier promise to “crush Malaysia”. As the crisis deepened the Australian ambassador warned his government that “One of the greatest dangers that I see is a Naval clash in disputed territorial waters. While the drama may take many months to play itself out it could conceivably lead to war and the collapse of the Sukarno regime, if not of the Indonesian State”.37 For the moment, the three main rivals for power within Indonesia all welcomed Confrontation, for, as Ricklefs explains, “Sukarno could again drive the revolutionary spirit forward, the military could look forward to increased budgets and the PKI could take the lead in mass agitation”.38 But no one could predict where the struggle between these three forces would lead either internationally or domestically. Despite the risk of inflaming anti-Western feelings the three Commonwealth states maintained their policy of providing notification only in “unusual” circumstances. Thus, the only times the Australian navy provided notification between April 1963 and May 1964 were when the Diamantina traveled along

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a “non-normal” shipping route while conducting (contrary to Decision No.103) an oceanographic survey in September 1963 and when seven RAN ships passed through the Lombok, Supudi, and Karimata straits in October 1963. On both occasions the notification was given informally.39 The Indonesian authorities apparently did not object on any of the occasions when there was no notification. In the UK, in the meantime, the British government was trying to find ways of minimizing the possibility of a clash with Indonesia in the event Indonesian naval vessels interfered with the passage of Commonwealth-flagged ships. One way to do this was simply to concede that Indonesia’s jurisdiction extended somewhat further from the coast than 3 miles from the low-water line of each island. By early June 1964, some months after the UK stated in confidential proceedings of the European Fisheries Commission that it accepted that limited extensions of the territorial sea beyond 3 miles might not be contrary to international law, the Foreign Office proposed after discussion with the Navy Department that leaving aside the Java, Banda, and Molucca seas and the Makassar Strait “waters within 12 miles of baselines drawn round the Indonesian coast, using the Indonesian method of drawing baselines[,] should be treated as Indonesian territorial sea”. This meant that the UK would, while not formally recognizing Indonesia’s claim, act as if, for example, it accepted Indonesia’s straight baselines along the west coast of Sumatra and its 12-mile territorial sea measured from those baselines (see figure 5.2). In response the Ministry of Defence pointed out that it would hardly be consistent for the UK to reject Indonesia’s claim and yet “tell H.M. ships to keep out if asked for help by a British or Commonwealth ship”.40 There the matter stood, unresolved, while further discussions took place within the British government. Back in Southeast Asia the conflict between Indonesia on the one side and Malaysia and its Commonwealth supporters on the other was entering a new phase. Up to this point the Indonesian military had launched several incursions across Indonesia’s border with Sarawak and Sabah (as North Borneo was now known) but no large-scale attacks on Malaysia or incursions of any sort on the Malay Peninsula. One reason for the limited nature of the military campaign was that while the army supported Confrontation it wanted to avoid an all-out war with Malaysia and its allies. After Sukarno appointed the air force commander to coordinate the campaign in May 1964, however, plans were made, apparently without army involvement, to conduct seaborne and airborne infiltrations of peninsular Malaysia.41 As this planning was taking place the commander-in-chief of British forces in the Far East informed the Ministry of Defence in London that he would like to send the aircraft carrier HMS Victorious from Singapore to Fremantle on a “routine visit”.42 He noted that the carrier could sail up the Malacca Strait and around the northern end of Sumatra before heading south to Fremantle but proposed that it take the normal route through the Sunda Strait even though it could be seen as “provocative”.43 Within the Ministry of Defence the view was that the Victorious should transit the Sunda Strait, for

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otherwise it would amount to an admission that the UK was not entitled to use that strait.44 The ministry approved transit of the Sunda Strait on 17 August. On that same day, in an action not supported by the Indonesian army leadership, a small force of Indonesian paratroopers and commandos landed on the southwest coast of the Malay Peninsula. Undeterred by the escalation in Confrontation (the invaders were quickly killed or captured), the UK went ahead with the transit as planned. The British naval attaché in Jakarta telephoned the director of Indonesian naval intelligence on 25 August to inform him that the Victorious and two escorts would be passing through the Sunda Strait two days later. The Indonesian government offered no objections and the passage took place without incident. (See figure 6.1.) While not objecting at the time, the Indonesian government was determined at the very least to take a tougher stand on future transits. The day after the Victorious passed through the Sunda Strait the deputy foreign minister, Suwito, asked the British chargé d’affaires, P.R. Oliver, to provide “rather more formal notice” in future. Referring to the recently reported clashes between North Vietnamese torpedo boats and US destroyers in the Gulf of Tonkin,45 he “stressed [the] danger that without adequate prior advice, [the] present tension might result in an unplanned, unwanted but serious incident”. Oliver told Suwito that he agreed that “any advice given of future such passages should for the time being be in writing”, meaning (though he did not make this explicit) that if the UK provided notification it would do so in writing.46 For a few days it appeared as if this would satisfy the Indonesians but at a reception at the presidential palace on 2 September Subandrio told the Australian ambassador that Indonesia would “refuse passage” when the Victorious and its escorts returned on 12 September (British officials wondered how he knew the date) and “did not care what the consequences were”.47 Then, three days later, Suwito told Oliver that the Indonesian navy would be conducting exercises in the area between Riau and the Sunda Strait in the near future and that for that reason it would be “‘appreciated if [British] warships were to avoid usual route’ for the time being”.48 British officials viewed these steps as a direct attack on the UK’s right to send its warships through the strait. They accepted that the narrowest section of the Sunda Strait was part of Indonesia’s territorial sea, since a ship passing through this section was always within 3 miles of Java or Sumatra or one of the tiny islands in the middle of the strait. However, as they saw it, the strait was “a strait used for international navigation” within the meaning of the Territorial Sea Convention, since as far as they were concerned it joined two areas of high seas, namely, the Indian Ocean and the Java Sea. The convention gave foreign ships the right of innocent passage through such straits and it forbade suspension of that right. The fact that Indonesia was not a party to the convention (which was due to come into force on 10 September) was according to British officials irrelevant, since the same rules had been enunciated on other occasions such as in the ICJ’s decision in the

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Figure 6.1 The voyage of HMS Victorious, August-September 1964

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Corfu Channel case. In their view the UK’s right of innocent passage through the Sunda Strait was incontrovertible. But how should it assert that right? It could, as it had always planned, return the Victorious to Singapore via the Sunda Strait, but this action risked fanning anti-British feelings at a time when the PKI, the most enthusiastic supporter of Confrontation, was gaining more and more influence and putting the lives of British citizens living in Indonesia in danger. Moreover, if, as seemed unlikely but still possible, the Indonesian navy and air force launched an attack on the carrier, the British navy could suffer damage to one of its most prized ships and the British government might well be drawn into a war with Indonesia. Alternatively the Victorious’s escorts could transit the strait while the carrier provided air cover; if that took place without incident the Victorious could then return to Singapore by the long route around the northern end of Sumatra. After changing its mind about what to do several times the government decided to postpone the return voyage by a few days. Keeping a close eye on these events was the US government. On one side, the US navy hoped that the British would take a hard line against Indonesia. Allowing the Indonesians “to enforce their long stated claim to control of the waters within and between the islands of [the] Indonesia archipelago”, declared the commander-in-chief of the Pacific Fleet, would “directly challenge U.S. position on international waters and U.S.…access to a vast sea…separating Australia from the China Seas”.49 On the other side, the secretary of state, Dean Rusk, made it clear to the British that because of the US government’s preoccupation with Vietnam the UK should not assume that the US would automatically come to its aid if it found itself in a major conflict with Indonesia.50 The British had this warning in mind as they tried to come up with a response that would make the UK’s point about the right to pass through the waters between Indonesia’s islands but minimize the chances of provoking any military action by Indonesia while doing so. Then, on 10 September, Suwito suggested to Oliver that the British might consider using the Lombok Strait instead.51 The British immediately grabbed this lifeline, which was accompanied by an assurance that Indonesia had no intention of closing the Sunda Strait.52 As they saw it, passage through the Lombok Strait would not amount to a backdown, since the Lombok Strait had exactly the same status as the Sunda Strait and since, moreover, the ships would spend even longer in Indonesian-claimed waters on their way to Singapore. Of course, to look at the matter from a different perspective, accepting Suwito’s suggestion would mean abandoning the planned route and instead taking a long detour that exposed the ships to the Indonesian fleet based in Surabaya,53 but this was not how the British saw it. Acting on instructions from the Foreign Office Oliver told Suwito on 12 September that the Victorious would be passing through the Lombok Strait. Suwito expressed the hope that there would be no mention in the press that the suggestion to use the Lombok Strait had come from Indonesia, “as it would

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embarrass [the] Indonesian Government with more extreme elements here”.54 On 15 September the British naval attaché handed Indonesian naval authorities a note informing them that the Victorious and its escorts—this time there would be five including a guided missile destroyer—would pass through the Lombok Strait on 18 September.55 The notification was on a piece of paper but in an effort to make the notification as informal as possible there was no heading or signature. The Indonesians did not object. According to an Indonesian account an Indonesian submarine suddenly surfaced a short distance from the warships as they were passing through the Lombok Strait.56 There was, however, no attempt to interfere with their passage. The Victorious and its escorts sailed to Singapore without incident (see figure 6.1). But there was a diplomatic incident. Immediately after the passage an Indonesian navy spokesman informed the public that the government “had permitted a flotilla of the British fleet through the Lombok Straits…after it had received an official request from the British government to that effect”.57 Oliver was furious and lodged a formal protest reminding Suwito that the suggestion that the ships pass through the Lombok Strait had come from the Indonesians and that the British had never asked for permission and warning Suwito that the British government might decide not to provide notification in future.58 A Foreign Ministry official attempted to appease Oliver by suggesting that the spokesman “had been obliged to say something to satisfy local enquirers and calm things down” but this only made Oliver angrier.59 Nevertheless, the British government soon let the matter drop to avoid provoking the Indonesians. As Oliver reminded Suwito, the British had not asked for permission. Nor, however, had they been free to go by any route they wanted. At no point did the Indonesians say the Sunda Strait was closed to foreign ships. In fact, Suwito said the government had no intention of closing the strait. It was simply that if British ships were to pass through it at this particular time they might (as Subandrio was quoted as saying) “get in the way of some guns”.60 Thus did the Indonesians assert the government’s authority over a passageway that in the view of much of the rest of the world was under international law open to the ships of all countries at all times. In the aftermath of the Victorious affair the government in London finalized the secret instructions it had been preparing to guide the operation of Royal Navy ships in waters claimed by Indonesia.61 These instructions were sent to the Far East Command at the very end of 1964. The government of course officially rejected the Indonesian claim but, following the principle discussed earlier in the year, instructed RN ships “in the present period of tension” to act as if certain aspects of that claim were valid. In particular, in those areas on the outer fringes of Indonesia where Indonesia’s claim did not encompass any major shipping routes through the islands RN ships were to regard the territorial sea as extending 12 miles out from the straight baselines in those areas. Thus, for example, as indicated in figure 6.2a, which shows a section of a chart prepared by the Ministry of

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Defence to accompany the instructions, RN ships were to observe the territorial sea as delimited by the Indonesian government along the west coast and around the northern tip of Sumatra in accordance with the 1960 map. At the same time, however, RN ships were to disregard those bands of territorial sea claimed by Indonesia that ran across the entrances to the main passageways through the archipelago. Moreover, they were not to regard the Java, Banda, and Maluku seas and other broad bodies of water within the archipelago such as the Makassar Strait as having the status of internal waters, as claimed by Indonesia. Instead they were to operate as if Indonesia’s territorial sea extended 12 miles out from the islands bordering these bodies of water and to treat waters lying beyond that distance as high seas. For example, as illustrated in figure 6.2b, RN ships were to ignore the straight baseline running across the northern entrance to the Makassar Strait and to regard the waters further than 12 miles from the coasts of Kalimantan and Sulawesi (and some small islands in the strait) as high seas. In short, the government determined that the RN should observe the 12-mile limit as claimed by Indonesia but not using Indonesia’s straight baselines except in certain areas on the periphery of the country where the RN’s strategic interests were not at stake.

Figure 6.2 Two sections of a chart issued by the British Ministry of Defence in December 1964 showing the policy to be adopted by Royal Navy ships in Indonesian-claimed waters

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The purpose of this partial acceptance of Law No.4 was to maintain as much freedom of navigation as possible while minimizing the risk of unpleasant incidents with the Indonesian navy. In keeping with this goal the instructions told the commanders of RN ships what they should and should not do in different areas if the Indonesian navy tried to “interfere” with the passage of a British-protected ship (a term that included the ships of other Commonwealth states when either the ship or the flag state requested the RN’s protection). The RN was expected to offer “every assistance” to any British-protected ship subjected to Indonesian interference beyond either of the 12-mile limits shown on the chart. If, however, the Indonesian navy interfered with such a ship within either of these limits but beyond the 3-mile limit recognized by Britain, then any RN ship in the vicinity was instructed to inform the Indonesian ship that it would be reporting the incident to Her Majesty’s government but “not otherwise to intervene or take any further action unless the Indonesian authorities use violence against the British-protected ship”. If an Indonesian patrol interfered with a British-protected ship within 3 miles of an island, and thus within the limit recognized by Britain, the RN was to take no action whatsoever unless the Indonesian vessel used violence against the ship. Thus, the British government was coming, in its actions even if not in its publicly stated policies, to give de facto recognition to some elements of the Indonesian government’s claim. The British government also reminded the Far East Command that “in order to minimize the risks of incidents” the Indonesian authorities were to be informally notified of the intended passage of RN ships through waters claimed by Indonesia. This instruction did not, however, extend to the 100-mile-wide zone beyond Indonesia’s territorial sea where under Regulation No.8 the Indonesian government prohibited foreign ships from stopping, anchoring, hovering without justifiable cause. In the eyes of the British government any attempt by the Indonesian navy to interfere with British-protected shipping in this area was illegal and could be met with force if all other means failed to persuade the Indonesians to withdraw. In January 1965 there was a slight relaxation of the 12-mile rule. At the request of the commander-in-chief of British forces in the Far East the British government allowed its warships to approach as close as 3 miles from Indonesia’s coast in the Malacca and Singapore straits for the purpose of “deterring Indonesian raiders” operating in those waters. Some Foreign Office officials were alarmed by this change, fearing that if Indonesia were to challenge the UK in the ICJ for violating its 12-mile limit it might well win, since so many states had adopted that limit by this time. In response the assistant undersecretary in the Foreign Office stressed the limited geographical scope of the measure—the commander-in-chief had not been given authority “to make provocative cruises 3½ miles off Tanjong Priok, the port of Djakarta”—and commented that if the Indonesians had the “effrontery” to launch a case against the UK “there would be plenty of…transgressions with which they themselves could be charged”.62

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*** By the middle of 1965 Indonesia seemed to be teetering on the verge of some sort of cataclysm. The power struggle between the PKI and the army had intensified. The PKI’s attempts to implement land reform by “unilateral actions” had antagonized Islamic groups, whose membership included many owners of relatively large plots of land. In 1963 Djuanda had attempted to bring the economy under control but the escalation of Confrontation after September of that year derailed that effort and the government had lost his steadying influence when he suddenly died in November. By 1965 the economy was a shambles, there were food shortages, and inflation was skyrocketing. At the center of the gathering storm Sukarno was desperately trying to stay in control by proclaiming more and more unifying slogans and maintaining his attack on the nation’s foreign enemies. In January, having recently aligned Indonesia with China, the president announced Indonesia’s withdrawal from the United Nations after Malaysia became a temporary member of the Security Council. By the middle of the year he was proclaiming plans to establish a rival to the UN to be called the Conference of Newly Emerging Forces and to explode an atomic bomb by November. In the meantime the standoff at sea continued. In July, after Sukarno ordered the navy, so one headline put it, to “shoot every enemy warship that violates Indonesian territorial waters”, the fleet commander said that he “hoped that the order…would be observed…for the sake of the greatness and security of the Indonesian country and nation”.63 In private conversations with UK officials the navy leadership took a less confrontational line. Thus the head of the staff college told the British ambassador that “the navy is not run by political speeches and the navy would follow its own course”. As he seemed to acknowledge, however, lower-level officers could not necessarily be relied on to exercise caution when encountering British warships.64 In these circumstances the Western maritime powers continued to wrestle with the perennial problem of how to assert what they regarded as their right of passage through the archipelago. The RN had not sent a single warship through since the Victorious episode and it appears that the US navy had been avoiding Indonesian-claimed waters as well. As always, the fear was that if the Western maritime powers did not exercise that right soon they risked giving Indonesia the impression that they had acquiesced to its claim. In Washington Rear Admiral Blouin proposed that the Defense Department “reopen with [the] State [Department] the question of sending one or more Navy ships through the Indonesian Straits ‘unannounced’ to demonstrate our refusal to accept the Indonesian claim to these as territorial waters”,65 while in London and Canberra officials considered various means of asserting the rights their governments claimed without bolstering the standing of the PKI or provoking a clash at sea.66 As of September, it appears, they had taken no steps to reassert those rights.

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By this time two of the primary proponents of Indonesia’s archipelagic claim, Hasjim Djalal and Mochtar Kusumaatmadja, had been overseas for about a year. Djalal had been posted to the Indonesian Embassy in Yugoslavia; a short time later he was, as a reproof for supposedly being pro-American, transferred to the tiny embassy in Guinea in West Africa.67 As for Mochtar, when it became obvious that (as one account puts it) “communist henchmen [kaki tangan komunis] had their sights on him”, Chairul Saleh, whose political influence was fading because of his efforts to disassociate Sukarno from the PKI but who still held a ministerial post, accelerated plans Mochtar had to go abroad for further study. He and his family soon left Indonesia for the United States, where he studied international transaction law at Harvard Law School before conducting research at the University of Chicago Law School.68 For at least part of the time they were overseas Djalal and Mochtar stayed in touch with each other. Back in their homeland, as Djalal later observed, Indonesia’s “activity in the law of the sea” had in the meantime “practically stopped”.69

HIATUS Late in 1965, following a violent attempt to rearrange the balance of domestic forces on the night of 30 September-1 October in which six of the country’s top generals were killed, Major-General Suharto seized control over the military and began purging it of those believed to have sympathies for the PKI, which he alleged had been behind a coup attempt. Convinced that Sukarno had some sort of link with the plotters, he very gradually and carefully began to challenge the president’s authority over the next few months, as several hundred thousand people alleged to have some association with the PKI were massacred either by or with the cooperation of the army. During this period, when the outcome of the power struggle between Suharto and Sukarno was by no means clear, the military did not want to do anything that might open them (as a British Embassy officer put it) to “criticism of being less diligent than Sukarno in defending Indonesia and asserting Indonesian sovereignty”.70 For this reason as well as a genuine fear of some sort of incident taking place the military continued to expect foreign governments to provide prior notification whenever they planned to send one of their warships through “Indonesian waters”. For their part, the Western maritime states, welcoming the sidelining of Sukarno, the crushing of the PKI, and the arrival of what by December they were already describing as “the new regime”, became slightly more cooperative in providing prior notification. In November the US government decided to send two large ships through the Malacca Strait. “They have decided, in the interests of keeping the Indonesian armed forces sweet,” reported the British Embassy in Jakarta, “to give prior notification.”71 Similarly, the Australian and British governments hoped to assert what they regarded as their

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freedom under international law to send warships through the archipelago but to do so without jeopardizing the ascendency of the military. Both sent relatively unthreatening ships (a lightly armed survey vessel in the Australian case) through the Sunda Strait after giving prior notification. Fearing that Sukarno’s close ally Subandrio, who though politically weakened was still the foreign minister, might raise objections, the British made a point of dealing only with the military. “We hope,” wrote an official in London in December, “the Indonesians will not make difficulties about the passage of these two small ships and that if this can be carried out without attracting undue attention there should be very little risk of Subandrio or any other ill-disposed person making mischief subsequently, to the embarrassment of the Generals.”72 During this period officials representing the Western maritime powers in Jakarta held conversations with Admiral Martadinata and other Indonesian naval officers to gauge just how far they would have to go to satisfy the military’s expectations. British documents in particular suggest that what mattered to the military at this time, as before the “coup attempt”, was that the Western maritime powers show some sort of acknowledgement of Indonesia’s authority over the waters it claimed even if only informally. This they did, even if in their own mind they gave prior notification purely as a matter of courtesy rather than as an obligation under Indonesian law. On 11 March 1966 Sukarno was forced to sign a document transferring his authority to Suharto. During this tumultuous period two of the primary advocates of the archipelagic idea died, though in very different circumstances. Just before transferring authority to Suharto, Sukarno dismissed Martadinata as naval chief of staff, apparently because he had quickly swung his support behind Suharto in crushing the “coup attempt”. In August he was appointed ambassador to Pakistan but died in a helicopter crash at Puncak Pass south of Jakarta a few weeks later. The only supporter of the archipelagic idea tainted by some association with the PKI was Chairul Saleh. Chairul was arrested along with Subandrio and several other cabinet ministers a few days after the transfer of authority and died in prison the following year.73 Thus, by 1967 all the early champions of the archipelagic idea except Subardjo, who had been an adviser to the Department of Foreign Affairs since leaving Geneva in 1961,74 were either dead or out of the country. At the same time, the institution that had done the most to implement Law No.4 ceased to exist when the emerging regime in its effort to “purify” the body politic decided in 1967 to abolish the Maritime Council along with all other councils thought to be contrary to the spirit of the 1945 constitution.75 Suharto became acting president on 11 March 1967 and president exactly a year later. During this period when Suharto was coming to power there was not the slightest indication that the new government, soon styled the New Order, would back away from Law No.4 or Regulation No.8. But the prospect of Indonesia gaining formal recognition of its archipelagic claim from any state with a direct interest in that law—namely, the Western maritime powers, which regularly sent

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their warships through the archipelago; Japan, which depended on the smooth flow of shipping through the same waterways and had long operated fishing fleets in this area; or any of Indonesia’s neighbours except the Philippines—appeared more remote than ever. Unless circumstances changed, and unless the government found a way to take advantage of those new circumstances, Indonesia’s archipelagic claim would remain enshrined in national law but at best obliquely acknowledged—and even then only grudgingly and tentatively—by those states whose recognition mattered the most.

CHAPTER 7

A new beginning new A beginning

As it happened, circumstances were already changing quite dramatically. Most obviously, the New Order was quickly consolidating its hold over Indonesia and changing the country’s foreign policy. It soon all but obliterated the PKI, began to stabilize the economy and attract foreign investment, rejoined the United Nations, terminated Confrontation with Malaysia, and joined with Malaysia, the Philippines, Singapore (which had separated from Malaysia in 1965), and Thailand to form the Association of Southeast Asian Nations. The formation of ASEAN, based as it was on the principles of regional cooperation and non-interference in the internal affairs of the member states, allowed the New Order to concentrate its energies on developing the economy and shoring up its authority. It also created the opportunity for peaceful negotiations between Indonesia and its ASEAN neighbours on matters of common interest. Also transformed was Indonesia’s relationship with the United States. “The climate of opinion towards Indonesia is…very favorable these days,” observed a State Department official at the end of 1967.1 The US government welcomed the New Order’s destruction of the PKI, not least because it put to rest the fears it had had of the strategically important waterways of the archipelago coming under communist control, and because of the investment opportunities Indonesia offered US businesses. For its part the New Order, though maintaining Indonesia’s non-aligned status and avoiding any rupture with the Soviet Union, welcomed the US military presence in the region as a counter to China, which had been the main foreign supporter of the PKI. Though formed by the military, primarily the army, the New Order regime itself was weaker militarily than its predecessor had been in the early 1960s. Virtually all its armed strength was devoted to policing Indonesia itself. At the same time, however, the New Order had started to mould the military into a much more unified and coherent organization than it had been in the early 1960s. As well as purging military personnel it suspected of being disloyal to the new regime it removed the chiefs of staff of the different branches of the military from cabinet and placed the military squarely under the command of the minister of defence, who initially was General Suharto himself. Accompanying and, so the regime hoped, reinforcing the unification of the armed forces was the emergence of a new doctrine that emphasized the territorial 135

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unity of Indonesia.2 By the end of the Sukarno era each of the three branches of the military had developed its own doctrine. As part of the New Order’s effort to unify the army, air force, and navy military personnel and others associated with the new regime held lengthy seminars in November 1966 and November 1967 at which they tried to fashion a new doctrine that would apply to all three branches. By the end of the second seminar they had developed a doctrine that applied not only to the army, navy, and air force but also to the entire state and society of Indonesia. They called this doctrine Wawasan Nusantara. Wawasan simply means “concept” or “outlook”. The word nusantara, literally “the islands between”, has an ancient heritage. In the sixteenth century Javanese had used it to refer to the islands outside Java that came within Java’s sphere of influence, but by the 1960s it had for the most part shed its Java-centric connotations and come to refer to the Indonesian archipelago or, in some contexts, simply Indonesia. The combination of the two words is probably best translated as “archipelagic outlook”. The basic idea of Wawasan Nusantara was that in every respect—territorially, politically, economically, culturally, and in defence and security—Indonesia formed a single integrated whole. Implicit in the territorial aspect of this integration was the vision embodied in Law No.4 of 1960 that Indonesia’s territory encompassed all of the country’s islands and the waters between those islands. That territorial unity was fundamental to all the other aspects of the nation’s unity. “We must overcome natural physical separateness,” the main document to come out of the 1967 seminar declared. “It is precisely the seas and channels which we must turn to our benefit to unite the islands, regions, National ethnicities, and units of economic potential.” According to Danusaputro, who contributed to the formulation of Wawasan Nusantara, the united territory of Indonesia formed the “physical container [wadah fisik]” within which all the nation’s hopes and aspirations were to be achieved.3 In the early 1960s the archipelagic concept formed no part of the national ideology. Even though he signed Law No.4 of 1960 and Regulation No.8 of 1962 we know of no record of Sukarno having ever referred to the archipelagic concept in public. Now, in sharp contrast, that concept lay at the heart of the New Order’s attempt to mould the country into an integrated whole. There was of course a great disjunction between the New Order’s conception of Indonesia’s territory and the way most other states viewed Indonesia. This problem was demonstrated most starkly when the New Order tried to settle Indonesia’s long-running fisheries dispute with Japan. Since 1960 the Indonesian navy had periodically arrested Japanese (as well as a smaller number of Okinawan, Taiwanese, and Filipino) fishing boats that had tried to operate in waters covered by Law No.4. In 1966 alone it seized nine Japanese boats.4 These arrests posed a difficult diplomatic problem for the New Order. On the one hand, it sought to defend Indonesia’s archipelagic claim (and the interests of Indonesia’s largely unmotorized fishing industry) in the face of foreign fishing boats. On the other, it could ill afford to antagonize Japan, which it looked to as a potential source

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of the foreign aid and investment it needed to fulfill its aim of rebuilding and developing Indonesia’s economy. In January 1968 the Indonesian government entered into negotiations with the Japanese government.5 Eventually, in July, the two sides agreed that members of two Japanese fishing associations—the National Federation of Fisheries Cooperatives of Japan and the Federation of Japanese Tuna Fishermen Cooperative Associations—would be allowed to catch tuna in the Banda Sea, where the richest tuna stocks were located, on payment of a certain fee.6 The agreement listed various conditions that the Japanese had to observe. Among other things, they could only catch the tuna using longlines, their vessels had to conform to various specifications, they were not allowed to operate motherships, they were only allowed to catch a certain amount of fish, and their vessels were required to call at the port of Ambon before returning to Japan to report how much they had caught. On the face of it this agreement offered the Indonesian government a golden opportunity to obtain Japan’s recognition of its archipelagic claim, since, as shown in figure 7.1, the waters specified in the agreement lay within the area covered by Law No.4 and since the agreement also prohibited the Japanese from fishing outside those waters. In the end, however, Indonesian officials failed to gain this

Figure 7.1 Area covered by the interim arrangement between the Indonesian government and Japanese fisheries organizations, July 1968

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recognition. The agreement referred to “waters between Indonesia’s islands” rather than, as these officials had wanted, “Indonesia’s waters”. Even with this wording the Japanese government refused to sign the agreement out of fear that it might imply some sort of recognition. Thus the parties signing the agreement were the Indonesian government and the two Japanese fishing associations. Despite all this the Indonesians persuaded themselves that at the very least the fee the Japanese had to pay implied some degree of recognition but the Japanese rejected any such implication. As far as they were concerned the fee was simply a payment for services provided when their vessels entered the port of Ambon. Of course, the Indonesian government did not have to sign this agreement. In addition to its lack of recognition of “Indonesian waters” it generated only a small financial return. Moreover, even at this stage officials appear to have held out little hope that Japanese fishermen would strictly abide by all the conditions they had agreed to. Overriding all this, however, was the government’s desperate desire for the aid funds that were either explicitly or tacitly tied to the agreement. International recognition of the principles in Law No.4 appeared no closer than it had been before the New Order came into power. While Indonesian officials were busy trying to do the best they could in their negotiations with Japan, however, an extraordinary shift was taking place in the wider world that could, depending on how the government responded, work to Indonesia’s advantage.

THE SEABED COMMITTEE By the time Indonesia signed the Banda Sea Agreement there was a strong desire in nearly all parts of the world not only to deal with the unfinished business of the two Geneva conferences but also to reconsider aspects of the four conventions adopted at the first conference and to address a variety of entirely new questions related to the law of the sea. There were three main impulses behind this desire.7 The first was the great increase in the number of independent nation-states in Asia, the Caribbean, and particularly Africa. Between the end of the second conference and the end of 1968 a total of forty-four newly independent states joined the United Nations, enlarging its membership by more than half and giving developing states much more influence within the organization.8 The leaders of most of these new states looked at the sea very differently from the way the maritime powers did. Their primary concerns were national security, national unity, and economic development. The leaders of those new states that had coasts hoped to extract wealth from the seas adjacent to those coasts. Many of these new states had claimed 12-mile territorial seas; Guinea claimed a 130-mile territorial sea in 1964 and then 200 miles the following year. Some of the newly independent states also joined the growing movement to claim exclusive fishery zones.9 Not having powerful navies, the leaders of the new states cared little about freedom

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of navigation in distant waters. Preoccupied as they were about both internal and external threats, most instead wanted to strengthen their jurisdiction over the waters along their coasts. By no means did the leaders of the newly independent states all have the same view on these matters. Their views depended very much on their particular geographic, economic, and political circumstances. But whatever their circumstances the leaders of most of these new states shared a desire to reconsider the prevailing law of the sea. This was precisely the desire Subardjo had expressed at the first Geneva conference. Now that desire had become a powerful force in world politics. The second impulse concerned the relationship between the superpowers. The United States and the Soviet Union remained bitter rivals but they slowly began to work together when it was in their common interest, as when the US, USSR, and UK signed the Partial Nuclear Test Ban Treaty in 1963. As the Soviet navy expanded during the 1960s the Soviet Union came to have the same interest as the US did in maintaining the freedom of the seas. Both states needed that freedom precisely because each wanted its navy to be as free as possible to track the movements of its rival’s ships and to have as much mobility as possible in the event of conflict. Though generally the Soviet Union was more sympathetic to the claims of newly independent states, both the Soviet and US governments viewed with alarm the great growth in the number and size of claims to ocean space and the threat they posed to their strategic positions. They were particularly worried about the impact these claims might have on transit through and over straits used for international navigation. The Soviet Union was also deeply concerned about the threat various claims, particularly those by South American states, posed to its expanding fishing fleet. By 1966, following a Soviet initiative, officials from the two governments were meeting privately to discuss how they might respond to the proliferation of claims to ocean space. The third impulse was the rapid development in the economic and military uses of the seabed. By 1967, in response to the ever-increasing world demand for energy, off-shore rigs were capable to extracting oil and gas from water as deep as a hundred metres and it appeared that they would soon be able to exploit deposits in much deeper water. Even more promising appeared to be the prospect of exploiting deposits of polymetallic nodules on the seabed in the deepest oceans. These nodules were first discovered in the 1860s and a few years later the Challenger expedition had found them in many parts of the oceans.10 Only now, however, did visions arise of a great mining bonanza, both because of breathtaking estimates of the size of these deposits (they were believed to contain thousands of times as much manganese, copper, nickel, cobalt, and other metals as all the known reserves of these metals on land)11 and because mining companies appeared to be developing the technology needed to exploit these riches. These developments immediately raised fundamental questions about the law of the sea. Article 1 of the Continental Shelf Convention defined the continental shelf as “the seabed and

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subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas”. Now there appeared to be no limit to the depth at which it was—or soon would be—possible to exploit the seabed. Most authorities rejected the notion that this meant that there was now no limit (aside from the claims of opposite and adjacent states) on how much of the seabed a state could claim but they could not agree on what that limit should be nor could they agree on what sort of regime if any should apply to the seabed lying beyond that limit. Adding urgency to these questions of jurisdiction was the simultaneous development of military uses of the seabed. Already the superpowers had developed networks of hydrophones that they placed on the seabed to detect the movement of submarines.12 Now there was speculation that they were developing the capability of launching nuclear weapons from facilities either fixed to or moving about on the seabed. From a strategic point of view the great advantage of these weapons would be that they would be almost impossible to detect, thus ensuring that any state that possessed them would retain a second-strike capability in the event of a nuclear attack. From a legal point of view the question was whether such a state would be free to place these weapons wherever it wished on the seabed outside the jurisdiction of any state, again raising the question of just how far that jurisdiction extended. Thus just a few years after it came into force several aspects of the convention appeared to be in need of serious reconsideration and elaboration. In the short term it was the questions raised by the expanding economic and military uses of the seabed that gained most attention. This was largely because of the work of Malta’s ambassador to the United Nations, Arvid Pardo. In a speech to the First Committee of the General Assembly on 1 November 1967 Pardo argued that the great rush by states to claim more and more of the seabed resembled the scramble for African colonies in the nineteenth century. He feared that only those states that had the technology to exploit the seabed would profit from its riches, thereby making global inequality even greater. He described the damage that unregulated exploitation of the seabed could have on the marine environment and the potentially catastrophic consequences of the militarization of the seabed. In his view the seabed of the deep oceans was “the common heritage of mankind”. It should not be the property of any state nor should it be freely available to any company with the necessary technology to exploit however it pleased. Instead, he argued, the UN should establish a special agency to regulate the commercial exploitation of the seabed “in the interests of mankind”. If such an agency were put in place by 1970, it would generate at least $6 billion within five years. Most of that money, he said, should be used to assist the development of poor countries. As first steps he proposed that the General Assembly adopt a resolution declaring that the seabed was “the common heritage of mankind”, that states make no more claims to the seabed until there was a clear definition of the continental shelf, and that

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the General Assembly establish a committee to consider “an international régime over the deep seas and ocean floor beyond present national jurisdiction”.13 In December 1967, after rejecting both a proposal from the United States to establish a permanent Committee on the Oceans and another from the Soviet Union to refer ocean issues to the Intergovernmental Oceanographic Commission, the General Assembly decided to establish a committee along the lines Pardo had proposed. Its full title was the Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction. During 1968, while this committee was meeting, the US and USSR reached agreement on three articles on the law of the sea. First, states would be allowed to extend their territorial seas out to 12 miles. This was a major concession by the United States, but it was tied to the second article, which guaranteed free transit through “international straits”. The third article, which the superpowers proposed in the hope of winning support from those states making claims to various sorts of jurisdictions beyond 12 miles, stated that coastal states would be allowed certain rights over resources in a zone outside their territorial seas. The two superpowers wanted an international conference that would, they hoped, entrench these principles in the law of the sea. At the end of 1968 they began circulating copies of the three articles to a small number of their close allies. As of 20 December the US government was considering putting the question of an international conference on the agenda of the UN General Assembly in July 1969 in the hope that the conference could be held in 1970.14 This plan was overtaken the next day by a decision by the General Assembly to replace the ad hoc committee with a permanent Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction. The General Assembly instructed the committee to study “the legal principles and norms which would promote international co-operation in the exploitation and use of the sea-bed…beyond the limits of national jurisdiction…for the benefit of mankind”.15 The General Assembly did not instruct the committee to consider what “the limits of national jurisdiction” were or should be. Nevertheless, the use of that term indirectly highlighted how uncertain those limits were. During 1969, while the committee began its work, US and Soviet diplomats visited the capitals of many states in an effort to gain support for their solution to this problem.

“GOOD FENCES MAKE GOOD NEIGHBORS” Indonesia supported the resolution setting up the Seabed Committee (as it was generally called) but otherwise had no part in these events nor did it become a member of the committee. In the latter part of 1968 and the early part of 1969, however, the government suddenly began to turn its attention to questions related to its maritime jurisdiction. The catalyst for this change was Mochtar’s return from

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his self-imposed exile in the United States sometime in 1968 but he arrived back in Indonesia just when the government was wrestling with questions arising from the rapid expansion of offshore oil exploration and exploitation that had taken place since offshore drilling began in 1966. Initially, offshore drilling posed no problem as far as the government was concerned, since it was conducted entirely inside the area covered by Law No.4, but the discovery of oil outside that area, particularly in the South China Sea and the Malacca Strait, created real difficulties, since it had no jurisdiction beyond Indonesia’s territorial sea. The government’s need to generate as much revenue as possible, the business interests of the military and certain individuals in the New Order, and pressure from foreign oil companies all made a resolution of this question particularly urgent. On 11 February 1969, in response to an initiative from Mochtar, who had returned to Padjadjaran University as a professor but was also acting as an adviser to the Department of Mines, that department established a Technical Team on the Continental Shelf Boundary.16 The team, which Mochtar chaired, proposed that the government follow the example of the United States, Australia, and many other countries by making a continental shelf declaration. On 17 February, just six days after the formation of the technical team, President Suharto did exactly this when he proclaimed that “all mineral and other natural resources…found in the seabed and the subsoil of the continental shelf outside the area of Indonesian waters as defined in Law No. 4 of 1960, down to a limit where the superjacent waters admit its exploration and exploitation, are the property of Indonesia and are under its exclusive jurisdiction”.17 Acknowledging that Indonesia’s continental shelf bordered the territory of other states, the proclamation also stated that the Indonesian government was prepared to enter into negotiations with other states “to determine a boundary line in conformity with legal and equitable principles” and that until it reached agreement with its neighbours it would allow exploration and exploitation only on the Indonesian side of “the median line drawn from the coast of Indonesia’s outermost islands”. A further article declared that none of these provisions affected the status of the waters above Indonesia’s continental shelf as high seas. In order to determine the exact extent of the country’s continental shelf, the Indonesian government would have to begin negotiating boundary agreements with its neighbours. In his inaugural lecture a few days after the proclamation Mochtar expressed the hope that these boundaries would be established “by means of negotiations with our neighbor states based on prevailing principles of law and on justice [azas-azas hukum yang belaku dan keadilan] in an atmosphere of friendship with the recognition of common interests”.18 Even so, the task looked daunting, since Indonesia shared continental shelves with Malaysia, Thailand, India, Vietnam, the Philippines, Australia, and the Australian-administered territories of Papua and New Guinea. But Mochtar and his colleagues, now including Hasjim Djalal, who had again joined forces with Mochtar after returning from Guinea in January 1969,

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regarded negotiations with these states as an opportunity to do far more than to determine Indonesia’s seabed boundaries: if they could incorporate even a hint of recognition of Law No.4 into boundary agreements with neighbouring states, they would start the process of gaining international recognition of Indonesia’s archipelagic claim. “How could we persuade those who were far away if we couldn’t persuade our brothers first?” Hasjim Djalal later explained. As a fundamental element of their strategy the Indonesians decided that to help them persuade neighbouring states to give at least indirect recognition of Indonesia’s claim they would be prepared, if necessary, to make concessions when negotiating maritime boundaries with them. What mattered above all else was the goal of winning that recognition. There was, in addition, a sense of how the task of negotiating maritime boundaries could contribute to the government’s mission to improve relations with neighbouring states. “I…had,” Djalal recalled, “the strong belief that good fences make good neighbors.”19 The first fence they hoped to construct was with Malaysia. Informal talks with Malaysian officials began as early as April 1969.20 Perhaps because of the riots that took place in Kuala Lumpur the following month formal talks did not begin until September. By that time the boundary question had become more complicated because in August the Malaysian government, acting under emergency powers it had assumed during the riots, issued an ordinance extending the width of Malaysia’s territorial sea from 3 to 12 miles.21 The ordinance did not indicate what baselines it would use for measuring Malaysia’s territorial sea. Nevertheless, within a few days of the ordinance being issued Mochtar, who was to lead the Indonesian negotiating team, already knew that the two governments would have to negotiate a territorial sea boundary as well as a continental shelf boundary since, as he understood it at the time, the two countries’ territorial seas “touch, or overlap, at four different points” in the Malacca Strait.22 The two negotiating teams decided to deal first with the continental shelf boundary before considering the territorial sea boundary in the Malacca Strait, though they also decided that the two boundaries should coincide in those places where their territorial seas met. In 1969 the “prevailing principles of law” to which Mochtar referred were embodied in the Continental Shelf Convention. Malaysia had ratified the convention in 1960 and although Indonesia’s ratification had been rejected by the UN Indonesian officials still accepted it as international law on the understanding that as far as the Indonesian government was concerned Indonesia’s continental shelf lay outside its territorial sea as defined by Law No.4 of 1960. In addition to article 1, which as we have mentioned defined the continental shelf as extending out to a depth of 200 metres or, beyond that limit, to the limit of exploitability, one other article, article 6, had a direct bearing on Indonesia’s negotiations not only with Malaysia but also with all the other neighbouring states with which it shared a continental shelf. Article 6(1) stated that “Where the same continental shelf is

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adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them”. Until they had reached an agreement, the article continued, the boundary was the median line “unless another boundary line is justified by special circumstances”. Article 6(2) used almost identical language to deal with the case of states whose coasts were adjacent to each other; the only difference was to indicate that until an agreement was reached the boundary in such cases was the equidistance line. Some international lawyers interpreted article 6 as indicating that an agreed boundary should normally follow the median or equidistance line. Just two days after Indonesia’s continental shelf proclamation the International Count of Justice rejected this interpretation in its ruling in the North Sea Continental Shelf cases. “The most fundamental of all rules of law relating to the continental shelf”, it declared, was that “the rights of the coastal State in respect to the area of continental shelf constituting a natural prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land”. The mere fact that the seabed was near a state’s land territory did not necessarily mean that it appertained to that state. What mattered above all else was the morphology of the seabed. Therefore, while any agreement between states must be “in accordance with equitable principles and [take into] account all relevant circumstances”, it should “leave as much as possible to each Party all those parts of the continental shelf that constituted a natural prolongation of its land territory, without encroachment on the natural prolongation of the land territory of the other”.23 In practical terms, the natural prolongation principle would, if the parties accepted the principle, mean that the seabed boundary between two states with opposite coasts could be much closer to one of those states if, for example, there was a marked depression in the seabed within a short distance of that state’s coast. If the seabed between the two states was fairly shallow and even, however, the natural prolongation principle was likely to have little bearing on the delimitation of the boundary. In any case, since the convention declared that the boundary should be determined “by agreement”, the two states could, if they so agreed, ignore the morphology of the seabed altogether, leaving them free to adopt the median line or any other line they wanted as the boundary. The most straightforward method of drawing a boundary is to adopt the median line (or, in the case of adjacent coasts, the equidistance line). The median line is drawn by first selecting a number of points along each state’s baselines. These points, which are known as basepoints, could be the tips of various capes, the outermost points of certain islands fringing the mainland, or selected points along a state’s straight baselines in cases where a state uses such baselines for delimiting its territorial sea. Once these basepoints have been selected the median line can be drawn following a well defined geometric method. The result is, to quote the standard definition of the median line, “a line every point of which is equidistant

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from the nearest points on the baselines of two States”.24 Simple though this appears, drawing a boundary in this way is often fraught with difficulty. One party may reject the other’s basepoints as unreasonable on the grounds that they give the other party jurisdiction over a greater area than if it had used another set of basepoints that the first party regards as fairer or more in conformity with international law. One party may also dispute the ownership of certain features such as islands that the other has used as basepoints. For this reason the negotiations can quickly get bogged down in arguments about basepoints and ownership even if the parties have agreed to adopt the median line as the boundary. Even if they have agreed in principle to adopt the median line and accept each other’s basepoints one party may plead that the boundary should deviate from the median line because of some special circumstance. Influencing all of these discussions are larger political considerations. The more the parties want good relations with one another the more quickly they are likely to overcome any disagreements they may have about how the boundary should be drawn. When they met in Kuala Lumpur in September 1969, the two negotiating teams faced the daunting task of agreeing on a boundary that, depending on how they drew it, could be as long as 1100 miles, since there are four areas where Indonesia and Malaysia share continental shelves, namely, the Malacca Strait, the South China Sea near the Malay Peninsula, the South China Sea north of Tanjung Datu, and the Sulawesi Sea. They made that task much easier by agreeing at the outset “that a median line approach should be used for delimitation purposes”.25 In addition, each side accepted the other’s basepoints in the Malacca Strait and in the two areas in the South China Sea. All but one of Indonesia’s basepoints in the Malacca Strait were on the straight baselines legislated in Law No.4. The only exception was Batu Mandi, a rock lying just beyond Indonesia’s straight baselines in the Malacca Strait that the Indonesian map makers had not been aware of in 1960 but that the Malaysians agreed belonged to Indonesia. As can be seen from figures 7.2 and 7.3, all of Malaysia’s basepoints lay along straight baselines that its government had not formally announced but that it used for the purpose of determining its territorial limits. Particularly in the Malacca Strait and along the east coast of the Malay Peninsula many of these straight baselines lay far from the mainland. Those in the Malacca Strait were generally further from the Malay Peninsula than Indonesia’s were from mainland Sumatra, thus giving Malaysia a distinct advantage when it came to drawing the median line. The Indonesians made this advantage possible by not disputing the Malaysians’ use of certain remote islands as turning points for some of their straight baselines. Referring to the use of one of these islands as a basepoint, Nugroho Wisnumurti later commented that “this was a concession on our part to reach agreement with our neighbor as soon as possible”.26 The negotiators quickly reached agreement on the boundary in the Malacca Strait and in the western part of the South China Sea. Both boundaries followed the median line. They encountered a major stumbling block when they turned their

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attention to the area north of Tanjung Datu, because the Malaysian government had granted a concession to Shell Oil in waters to the west of the equidistance line (see figure 7.2). At first the Indonesians insisted on using the equidistance line as the boundary. Eventually, however, they agreed to accommodate Malaysia by accepting a boundary well to the west of that line. “Indonesia is believed,” observes Choon-ho Park in relation to this boundary, “to have conceded to Malaysian claims, to enlist Malaysian support for its archipelagic claims.”27 Far more intractable was the continental shelf that the two states shared in the Sulawesi Sea. Here the main problem was that the two sides could not agree on the ownership of two islands, Sipadan and Ligitan, that each side could, if it owned the islands, use as basepoints for drawing the equidistance line in that area. According to Indonesian accounts, the Indonesian negotiators were able to point to a British map that showed that the islands belonged to Indonesia, while the Malaysians noted that the map accompanying Law No.4 did not make use of them in delimiting Indonesia’s straight baselines, thus suggesting that Indonesia had not claimed ownership of them. Since the Indonesians had no authority to negotiate the ownership of islands, the two negotiating teams abandoned their

Figure 7.2 Continental shelf boundary between Indonesia and Malaysia in the South China Sea according to the agreement of October 1969

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attempt to draw a boundary in the Sulawesi Sea. As the Indonesians understood it, the two sides agreed to maintain the status quo, meaning that the question of ownership remained unresolved, while the Malaysians were later to claim that there had been no such agreement, since as far as they were concerned the islands had always belonged to Malaysia. In any case, the two sides failed to agree on a continental shelf boundary in the Sulawesi Sea at this time. Nevertheless, after just two weeks of negotiations the leaders of the two teams went ahead and initialed an agreement for the three other areas on 22 September. The Indonesian and Malaysian governments signed the agreement just over a month later and exchanged ratifications on 7 November. Neither government had to gain parliamentary approval, since Malaysia was under emergency rule and President Suharto had the authority to ratify what the Indonesian government regarded as a resource rather than a territorial agreement.28 The Indonesians had conceded a great deal to the Malaysians, particularly in the area north of Tanjung Datu. In return, however, they had received what they regarded as de facto recognition of Law No.4. In January 1970 Indonesian and Malaysian negotiating teams met informally to discuss the unfinished business of the territorial sea boundary in the southern part of the Malacca Strait. When they held formal talks the following month they encountered no difficulties, since they had already agreed that the territorial sea boundary should coincide with the continental shelf boundary wherever their current territorial seas overlapped. Because both sides used straight baselines their territorial seas overlapped in many places where their coastlines were more than 24 miles apart. As can be seen in figure 7.3, there was a tiny slither in the southern part of the strait where their straight baselines were more than 24 miles apart. That was the only area where the territorial sea boundary did not coincide with the continental shelf boundary. After just a week of negotiations the leaders of the two delegations initialed an agreement. The leader of the Indonesian delegation, who on this occasion was the secretary-general of the Department of Justice, Kadarusman, and Mochtar, who was his deputy, strongly recommended that the government sign and ratify the agreement as soon as possible. Because the boundary had been drawn using, on the Indonesian side, the straight baselines in Law No.4, they declared, the agreement served to embed that law in an international agreement. It had also, they claimed, abolished what had been a source of conflict between the two states because of incidents that had occurred in that area “due to the unclear territorial sea boundary line”.29 Ministers representing the two countries signed the treaty, as it was now called, on 17 March, the Indonesian parliament then gave its assent, and the treaty came into force in March 1971. The explanatory note accompanying the legislation that incorporated the treaty into Indonesian law emphasized what the Indonesians regarded as the larger significance of the treaty. It had, the note declared, “strengthened Law No.4 of 1960, at least in that part of the Malacca Strait dealt with by the treaty”.30

Figure 7.3 Continental shelf and territorial sea boundaries between Indonesia and Malaysia in the Malacca Strait

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Another country with which Indonesian officials were anxious to reach a continental shelf agreement was Australia. The two countries share a vast area of seabed in the Arafura and Timor seas, and by late 1969 there was increasing urgency to agree on a boundary, since both governments had issued oil and gas exploration licences in these areas. In January 1970 Indonesia’s minister for energy and mineral resources, Soemantri Brodjonegoro, suggested to Australia’s minister of external affairs that the two governments hold talks soon to see whether they could reach agreement on a seabed boundary. Soemantri also suggested that the two governments hold two sets of talks. The first would be devoted to “preliminary and technical exchange of views and information”, while the second would attempt to finalize an agreement.31 The Australian government quickly agreed to both suggestions and the two governments then decided to hold the first set of talks in March. Mochtar arrived in Canberra leading the Indonesian delegation just a few days after the completion of the territorial sea boundary negotiations with Malaysia. Leading the Australian delegation was the deputy secretary of the Department of Foreign Affairs, Sir Laurence McIntyre, who had been Australia’s ambassador to Indonesia when Subandrio had asked the Australian government to give prior notification of the passage of RAN ships “close to Indonesian territory”. Both delegations included hydrographers and other experts. Both had given a great deal of thought to their respective positions. A sticking point that had the potential to derail the talks on their first day was the system of straight baselines in Law No.4. In his opening address McIntyre reminded the Indonesians that “Australia has not been able to recognize the validity in international law of, and does not consider itself bound by, the baselines adopted by Indonesia for the measurement of the territorial sea”.32 Instead of defending Law No.4 Mochtar replied that “Indonesia did not wish to press its own proclaimed baselines in drawing up a median line. It was quite possible to determine a boundary from common points.”33 As far as the negotiations were concerned this meant that the Indonesians would not insist on choosing as basepoints any points along their straight baselines. They could, however, choose as basepoints some of the turning points—the end points—that defined those lines, since these turning points were all geographical features of one sort or another. Among the turning points that they appear to have chosen as basepoints were points 88 and 101 (see figure 7.4).34 Thus, while the Indonesians regarded their willingness to disregard their straight baselines as a major concession on their part they did not see this concession as a violation of Law No.4, since they were, after all, using turning points listed in that law as Indonesia’s basepoints in the negotiations. Indeed, according to the Indonesian way of thinking the Australians’ acceptance of those turning points as basepoints in the boundary negotiations meant that Australia was implicitly recognizing the archipelagic principle.35 They were, however, careful not to suggest this to the Australians. While the Australians were presumably aware that the Indonesian basepoints were turning points listed in Law No.4 those basepoints were, from the

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Australian point of view, simply features of the sort normally used when delimiting a median line. They would have been appalled by any suggestion that they were in some way recognizing Law No.4. Having settled this matter, the delegations could turn their attention to drawing boundaries in the Arafura and Timor seas. As can be seen in figure 7.4, most of the Arafura Sea is less than 200 metres deep. (The 100 fathom line shown on the map indicates waters very slightly shallower than 200 metres.) Thus there was no doubt that according to the definition in the Continental Shelf Convention the two countries shared a continental shelf in this area. The two delegations quickly agreed that here the seabed boundary should run along the median line between their respective coasts. The Indonesians’ willingness to disregard the straight baselines in Law No.4 made very little difference in this area. This was partly because (as figure 7.4 shows) the straight baselines in this area were much shorter than the distance between those baselines and the Australian coast but also because in any

Figure 7.4 Continental shelf boundary between Indonesia and Australia in the Arafura Sea according to the agreement of May 1971

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case those baselines followed Indonesia’s coastline very closely rather than, for example, running straight from the southeastern tip of the Aru Islands to the southwestern tip of Pulau Dolak. Thus, Mochtar’s concession allowed the two sides to reach a tentative understanding on the boundary in the Arafura Sea without putting Indonesia at any significant disadvantage. Most of the Timor Sea is also less than 200 metres deep but just to the south of the band of islands from Roti and Timor to the Tanimbar Islands it plunges to about 3000 metres in the Timor Trough. Largely because of this feature most of the discussion between the two delegations concerned the Timor Sea. The Australian view was that there were two distinct continental shelves in this area, one on the Indonesian (and Portuguese Timorese) side and the other on the Australian side. Following the principle of natural prolongation, they believed the seabed over which Australia had sovereign rights extended to the foot of Australia’s continental margin, namely, the point at which it merges with the deep sea floor. That point lay either somewhere along the southern edge of the Timor Trough or possibly at the bottom of the trough. The Indonesians had a very different view. They insisted that there was only one continental shelf and that the Timor Trough was merely a depression in that shelf. Since technological advances were making it possible to exploit the resources in deeper and deeper waters, they argued, there was little point in trying to determine the boundary according to the limit of exploitability. “Why not, therefore,” Mochtar asked, “draw a median line between the opposite coasts, without any reference to depth?”36 That median line would of course have been well to the south of the Timor Trough, thereby giving Indonesia a much greater area than the Australian method would. The record of the negotiations hints at a sense of exasperation on Mochtar’s part. In his view, “international law on the continental shelf would suggest that you take into account political considerations as well as merely geological ones”. If Indonesia had been prepared not to insist on using its straight baselines, then, he suggested, “Australia should be prepared to consider a political factor in the needs of a friendly neighbour.”37 By the end of the talks, in which Mochtar did most of the speaking on the Indonesian side, handling matters as diverse as seabed morphology, map projections, and international law, the delegations had sketched out several alternatives that they would present to their governments for consideration.38 In one of these the two governments would reach an understanding that there would be no common boundary; instead each country would delimit the outer edge of the area under its jurisdiction along an agreed contour line such as the 1000 metre contour and the area between the two lines could become part of the international zone being considered by the Seabed Committee. Another possibility was to agree on a “line of administrative convenience”; at some later date the two governments could reach a formal agreement in light of developments in international law. Yet another alternative was a compromise between the Australian position and the median line proposed by the Indonesians.

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In addition to discussing seabed boundaries in the Timor and Arafura seas the Indonesians and Australians also discussed boundaries between Indonesia and the Australian-administered territories of Papua and New Guinea. The expectation was that the seabed boundary between Indonesia and Papua would follow a line from the southern end of their land border to the eastern end of the boundary that they had tentatively drawn in the Arafura Sea. But a detailed survey remained to be done before the two sides could discuss this boundary any further.

OUT INTO THE WIDER WORLD By March 1970 Indonesian officials had negotiated continental shelf and territorial sea boundary agreements with Malaysia, reached an understanding on a continental shelf boundary agreement with Australia in the Arafura Sea, and begun discussions on Indonesia’s continental shelf boundary with Australia in the Timor Sea. The fences were starting to take shape. Even more important, the Indonesians had, at least in their own minds, taken a step towards gaining recognition of Law No.4. But soon after he returned to Indonesia Mochtar had decided that as well as pursuing bilateral agreements the government should also make its position heard in international forums where fundamental changes to the law of the sea were being debated. He was very critical of the government for not being a member of the most important of these forums, the Seabed Committee. Eventually he and other like-minded officials including Hasjim Djalal persuaded the government to send observers to the committee’s meetings in 1970. By the time Mochtar, Djalal, and a small number of other officials attended the committee’s meetings in Geneva in August a great deal had happened. In February the US government had formally declared its acceptance of a 12-mile territorial sea in exchange for free transit through international straits.39 In May President Nixon had reinforced that position in a major statement on ocean policy.40 He also proposed that all states sign a treaty renouncing claims to the resources of the seabed in waters deeper than 200 metres and that there be an international regime to exploit those resources. And in May and June Latin American countries had come together to call for a UN conference that would consider not only questions related to the seabed but also all the other questions that needed to be resolved such as the width of the territorial sea. At the Geneva session that Mochtar and his colleagues observed the US delegation presented a draft treaty on the seabed, thus forcing intense debate about specific proposals. Everything seemed to be up in the air. Immediately after returning to Jakarta the Indonesian delegation wrote a report insisting that Indonesia become a full member of the committee. As it saw it, membership would provide Indonesia with just the opportunity it needed to promote its position. The government appears to have accepted its recommendation and applied for membership right away. By November virtually

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all states, including the United States, which had previously favored dealing with the question of the seabed separately, had come to the view that a conference should be held to address the full range of issues related to the law of the sea. By this time the Indonesian government had already begun to remind other members of the UN of the question of archipelagos. “The seas surrounding the islands in an archipelago are important,” declared the Indonesian ambassador in November during debate on nuclear disarmament in the First Committee of the General Assembly, “not only as part and parcel of the national life and a God-given source of livelihood for the people of those islands, but for the security of the entire nation as well.” He emphasized that while Indonesia strongly supported a treaty prohibiting the placing of nuclear weapons on the seabed any treaty “should not encroach upon our national territorial jurisdiction, directly or indirectly”.41 Three weeks later, when the First Committee was debating the future work of the Seabed Committee, the ambassador referred specifically to the laws that regulated Indonesia’s continental shelf, “Indonesian waters”, and the innocent passage of foreign vessels “in our waters”. Since these laws were publically available, he added, there could be no doubt about “where we stand”.42 On 17 December the UN General Assembly passed four resolutions concerning the law of the sea. Two were particularly momentous. First, the assembly formally declared the seabed beyond the limits of national jurisdiction to be “the common heritage of mankind” and called for an international regime to “provide for the orderly and safe development and rational management” of this area and to “ensure the equitable sharing by States in the benefits derived therefrom”.43 Second, it decided to convene a conference on the law of the sea that would deal with: the establishment of an equitable international régime…for the area and the resources of the sea-bed and the ocean floor…beyond the limits of national jurisdiction, a precise definition of the area, and a broad range of related issues including those concerning the régimes of the high seas, the continental shelf, the territorial sea (including the question of its breadth and the question of international straits) and contiguous zone, fishing and conservation of living resources of the high seas…, the preservation of the marine environment…and scientific research. The General Assembly gave the Seabed Committee, whose membership was to be greatly enlarged, the herculean task of preparing draft treaty articles on the seabed, a comprehensive list of all the other subjects the conference should address, and draft articles on these subjects.44 This aspect of the resolution represented a marked departure from the first Geneva conference in 1958. Whereas the task of preparing for that conference had been undertaken by a fairly small body of experts in international law, the International Law Commission, preparation

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for the upcoming conference would now be in the hands of representatives of nation-states. Whether entrusting the preparatory work to a much more overtly political body increased the likelihood for compromise or deadlock remained to be seen. When the expanded membership of Seabed Committee was announced early in January 1971 Indonesia was among the new members, as was the Philippines, which had had observer status since 1969. Just two weeks after this announcement an Indonesian delegation led by Hasjim Djalal flew to Colombo to attend a meeting of the Asian-African Legal Consultative Committee. Since the main item on the agenda was the law of the sea, the Indonesians saw the meeting as an opportunity to gain Asian and African support for Indonesia’s archipelagic claim. According to a report on the meeting, the Philippine and Indonesian representatives “strenuously advocated an archipelago principle which guarantees the unity of their groups of islands while recognizing the right of innocent passage of foreign ships”.45 Although delegates from several countries expressed general support for the Philippine-Indonesian position, many others wanted to know much more about basic aspects of the archipelagic principle before committing themselves one way or another. The Indonesians left the meeting convinced that they would need to come up with a legal formulation of the archipelagic principle.46 At that point each country had its own legislation delimiting its straight baselines. There was, however, no common understanding of the conditions under which states might draw such baselines, the status of the waters inside those baselines, or exactly what conditions applied to foreign ships passing through those waters. The archipelagic states would have to arrive at some such understanding before they could hope to persuade other states to support their cause. The expectation that several more states would make some sort of archipelagic claim made the need to do this all the more urgent. *** Before facing this question, however, Indonesian officials turned their attention to their unfinished business with Australia. In February 1971 the two negotiating teams met again in Canberra. The Indonesians had signaled to their Australian counterparts that they were eager to reach agreement on all of the seabed boundaries that they had discussed in March 1970 and that they might be willing to make concessions in order to do so.47 Specifically, they hoped to finalize agreements on boundaries between (1) Indonesia and Australia in the Arafura Sea, (2) Indonesia and Australia in the Timor Sea, (3) Indonesia and Australian-administered Papua, and (4) Indonesia and Australian-administered New Guinea. The Australian government was willing to negotiate on all of these except for the second one. In October 1970 the Australian minister for external affairs had reaffirmed in parliament Australia’s position that its rights extended out to the outer edge of Australia’s continental margin, citing both the Continental Shelf

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Convention and the ICJ’s ruling in the North Sea Continental Shelf cases. The Australian view was still that “there are two distinct shelves [in the Timor Sea], and not one and the same shelf, separating the two opposite coasts”. Since “there is no common area to delimit”, the minister said, the provision in the convention declaring that in the absence of an agreement states should observe the median line as the boundary was irrelevant. His statement that the law defining Australia’s continental shelf “will not be changed except by agreement; and without adequate safeguards for existing investors there is little or no likelihood of agreement” left open the possibility of some sort of compromise.48 Apparently because it was still digesting recent developments in relation to the seabed, particularly President Nixon’s policy statement in May 1970, however, the Australian government instructed its delegation not to enter into negotiations about a seabed boundary in the Timor Sea but simply to use the occasion to exchange views on this boundary if the Indonesians expressed a wish to have such an exchange. The Indonesian delegation, again led by Mochtar, wanted more than an exchange of views. It wanted an agreement, one based, so Mochtar told the Australians, “not only on legal principles but on the equitable accommodation of the reasonable interests and expectations of both countries”. Because the Australians were not prepared to negotiate, however, the two sides merely repeated the positions they had proclaimed in March 1970. A suggestion from A. Pulunggono, an eminent geologist working for the Indonesian state-owned oil company Pertamina, that there was at the very least some doubt about whether the Timor Trough really marked, as the Australians claimed, the boundary between two distinct shelves was brushed aside with the comment that “these features are not subject to changing geoscientific theory”. None of Mochtar’s attempts to open up discussion came to anything.49 As an Australian official later recalled, “the Indonesians had been willing to talk and we had to cut them short”.50 The two negotiating teams did, however, achieve a great deal in relation to the three other areas. Based on the understanding they had reached in 1970, they quickly agreed on a 478-mile-long seabed boundary in the Arafura Sea from A1 in the east to A12 near the 200-metre isobaths (see figure 7.4).51 In this area, at least, there was no doubt that the two countries shared a continental shelf. In the area to the north of the land boundary between Indonesia and New Guinea there was, in contrast, great doubt about the extent of the continental shelf. For this reason the negotiators did not agree on an actual boundary. Instead they agreed on an equidistance line running from point C1 to point C2 that represented the direction of any boundary they might agree on at a later date. Finally, they agreed on one segment, running from A1 to B1, between Indonesia and Papua. Determining this last segment required finesse on both sides, for when they reconsidered the line they had tentatively drawn in 1970 they encountered a big problem. The Indonesians had assumed that the point at which the land border met the coast was also point 82 in Indonesia’s system of straight baselines as listed in

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Law No.4. Following the 1970 meeting, however, Australian hydrographers had found that point 82 was actually located in Papuan territory. (They also found that because point 82 was located some distance from the coast the straight baselines between points 82 and 83 and between points 83 and 84 actually crossed land.) This meant that the Indonesians could not make explicit use of point 82 as a basepoint for determining the seabed boundary between Indonesia and Papua in this area. The Indonesian negotiators acknowledged that the Indonesian government would need to amend Law No.4. According to a document that the Australian foreign minister submitted to cabinet after the talks, “a solution for the time being was found…by commencing the boundary line from the point closest to the coast, on the 1970 line, that the Indonesians could accept as consistent with the present Indonesian law”. Specifically, as can be seen in figure 7.5, which is redrawn from an Australian map labeled “Sketch map 2A”, a line was drawn from point 82 at a right angle to Indonesia’s straight baseline between points 82 and 83 seaward to the first point on the 1970 line that was consistent with Law No.4. That point was B1. Who actually drew this line during the negotiations is a mystery, since the Australians did not show “Sketch map 2A” to the Indonesians, apparently for fear of implying recognition of Indonesia’s straight baselines and 12-mile territorial sea. Somehow, however, the two sides found some highly informal mechanism that allowed them to determine point B1 in a way that made use of point 82, even though it lay in Papuan territory, but without the Australians having to imply recognition of either that point or the straight baseline between it and point 83. In any case, having fixed point B1, they then drew a line from B1 to A1, thus creating a segment 34 miles long. They agreed that any agreement on the boundary between B1 and the coast would have to await further negotiations.52 At the end of the talks Mochtar and the leader of the Australian delegation, Ralph Harry, initialed an agreement that delimited the three boundaries they had negotiated.53 (See photograph 7.1.) Officials from the two countries immediately began planning a signing ceremony to be held in April or May.54 Now, just a year and a half after Indonesian officials had begun trying to erect fences, Indonesia had seabed boundaries with Malaysia in the Malacca Strait and South China Sea and with Australia in the Arafura Sea. Their total length was about 1460 miles. *** Just three weeks after these negotiations a small delegation of Indonesian officials attended the spring session of the Seabed Committee in Geneva. This was a major occasion for the Indonesians since this was the first session since Indonesia had become a member of the committee. The leader of the delegation was Umaryadi Nyotowiyono, Indonesia’s permanent representative to the UN at Geneva. The other members were Mochtar, fresh from the talks in Canberra, representatives of the Department of Mines and the state-owned oil company, and a young official

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Figure 7.5 Calculating point B1 of the continental shelf boundary between Indonesia and Australia, 1971

in the Department of Foreign Affairs, Nugroho Wisnumurti. Since this was the committee’s first session since the General Assembly had given it the task of preparing for the third law of the sea conference, most of the spring session was devoted to organizational matters. The committee allocated the work of preparing for the conference to three sub-committees. Sub-Committee I assumed

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responsibility for drafting a treaty establishing an international regime for the regulation and exploitation of the seabed beyond national jurisdiction in accordance with Resolution 2750A (XXV). Sub-Committee II was to prepare a “comprehensive list” of subjects relating to the law of the sea such as the questions of the width of the territorial sea and international straits and to prepare draft treaty articles on these subjects. Finally, Sub-Committee III was to consider environmental matters and scientific research. During the spring session representatives of more than sixty different states including Indonesia gave formal statements. These statements primarily addressed the organizational matters that the committee was examining. There was, for example, much debate about exactly which subjects would be discussed by Sub-Committee II rather than Sub-Committee I. This was a source of some confusion, since Sub-Committee I was to deal with the area beyond the limits of national jurisdiction while Sub-Committee II had the task of discussing what those limits were. But the statements also gave the delegations the opportunity, if they chose to take it, to stake

Photograph 7.1 Indonesian and Australian delegations after negotiating an agreement on a continental shelf boundary in the Arafura Sea, 1971. Seated: Mochtar Kusumaatmadja and Ralph Harry. Standing: Adi Sumardiman (far left), Professor Pulunggono (second from left), Sir Kenneth Bailey (standing between Mochtar and Harry), Keith Brennan (second from right).

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out their positions on the issues that mattered most to their governments. According to Nugroho, the Indonesian delegation engaged in “an extremely intense discussion” about whether its statement should deal only with the question of the seabed beyond national jurisdiction, which was the focus of much of the debate at the time, or should also enunciate Indonesia’s position as an archipelagic state. Mochtar argued that it would be better not to refer to the archipelagic question on this occasion, whereas Nugroho argued that the statement offered Indonesia a “new opportunity that had to be seized to present a proposal regarding the archipelagic state principle”. Nugroho attributes Mochtar’s caution to the rebuffs Indonesia had experienced at the 1958 and 1960 conferences. In any case, after “quite heated debate, during which Pak Mochtar showed wisdom and patience while facing the force of youth infused with fiery passion”, it was agreed that the statement, which was to be delivered by Umaryadi, should reaffirm Indonesia’s position on archipelagos.55 There was, however, some uncertainty about how best to introduce this reaffirmation. “As it was unlikely that archipelago[s] would be a separate item in the Conference agenda,” Nugroho later recalled, “I thought that we could use the issue of territorial sea as a platform for promoting the archipelagic State principles.”56 In his statement on 22 March Umaryadi began by addressing the question of the division of subjects between the first two subcommittees. The primary responsibility of determining the limits of the international seabed area, he argued, should go to Sub-Committee II, since that sub-committee would be discussing what amounted to the same question, namely, the outer limit of the continental shelf. But he then, following Nugroho’s tactical suggestion, changed the subject completely. Any discussion of the question of the territorial sea, he declared, had to consider “the special position of archipelagic countries”. He then took the opportunity to sketch out Indonesia’s position. That “the islands…and intervening waters…formed a single unit” was “an axiomatic fact of life” for the Indonesian people and government. Indeed, he continued, the archipelagic concept “was essential for the country’s survival”. While the government guaranteed “freedom of navigation”, he insisted, passage had to be innocent. Specifically, ships passing through “Indonesian waters” “must not endanger national security, public order, national interests, peace” or, he added, referring to the risk of pollution by supertankers, “the well-being of the coastal population”.57 Earlier in the same meeting Arturo Tolentino had mounted an elaborate argument justifying the Philippines’ maritime claims. The thrust of that argument was that while the Philippines did not condone indiscriminate claims to ocean space any international convention would of course have to recognize the claims states such as the Philippines had already made.58 In contrast, Umaryadi simply presented Indonesia’s archipelagic claim and its enactment into law as the natural, even inevitable, product of Indonesia’s circumstances. The message to the other members of the Seabed Committee was that any convention coming out of the upcoming conference would have to recognize that fact.

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“SAILING PERMITS” In April 1971, just a week after the spring session of the Seabed Committee, President Suharto issued a decision dealing with the passage of foreign ships through “Indonesia’s water territory [wilayah perairan Indonesia]”.59 This decision required both foreign civil and military vessels operating in that territory “to possess a ‘sailing permit [izin belayar]’ issued by the government”.60 Specifically, civil vessels were required to obtain a “sailing permit” (the decision used the English term at this point) from the minister of communications, while military vessels had to have a “security clearance” obtained from the minister of defence and security. Civil vessels that undertook hydrographic surveys or whose activities affected security were required to obtain security clearances as well as sailing permits. On the face of it the presidential decision placed far more onerous requirements on foreign ships than those set out in Regulation No.8 of 1962. Whereas that regulation required foreign warships to give notification before passing through “Indonesian waters”, the presidential decision required all foreign vessels to obtain what amounted to prior authorization. The government provided almost no explanation of the reasons for the presidential decision. The decision itself referred to the need to centralize the management of safety and security and, in view of the reorganization of the Department of Defence and Security and the “refunctionalization” of the military, to specify who had the authority to issue sailing permits. But it did not explain why foreign ships would now be required to obtain these permits. In a conversation with Sir Kenneth Bailey, the special adviser in international law to the Australian Department of Foreign Affairs, in May Mochtar said that, as he understood it, the decision had been prompted by recent reports of North Vietnamese and Soviet ships in “Indonesian waters”. He added that defence personnel “were in any case particularly apprehensive about security matters just now” in view of the upcoming general elections, the first since Suharto had seized power.61 Another explanation was that the decision was related to a recent incident in which a helicopter based on an American warship reportedly landed on an island near Jakarta.62 Whatever its motivation, one thing is clear: the presidential decision was initiated entirely by the military. Neither the Department of Foreign Affairs nor Mochtar was consulted before it was issued. Mochtar told Bailey that he first learned about it from the press. He was in fact “greatly embarrassed” by the decision, since it contradicted the existing law which, he said, guaranteed innocent passage. Along with a number of others, including the head of the legal division of the Foreign Ministry, E.H. Laurens, he was, he said, taking steps to have the decision withdrawn, though this required “some delicacy” since Suharto was also the minister of defence. According to Mochtar, the military was very unlikely to enforce the decision in relation to Australian ships, particularly if the Australian government did not formally protest against it. Indeed, by this point

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the Australian and British governments had already decided to ignore the decision. They would, they decided, simply continue with their policy of providing, as a matter of courtesy, informal notification of the passage of their warships through waters near Indonesia’s coasts. Unless provoked by a formal protest, they reasoned, the Indonesian government would tacitly acquiesce in their non-compliance.63 As it happened, the military showed no sign that it would try to enforce the decision. Nor, however, was there any indication that the decision might be withdrawn. Innocent passage fell well short of what the Western maritime powers wanted in the waters between Indonesia’s islands. Now, it appeared, the Indonesian government could not even be trusted to guarantee that.

MEANWHILE, IN THE MALACCA AND SINGAPORE STRAITS… In the early part of 1971 the politically most volatile issue related to the law of the sea that Indonesian officials, civilian and military, faced concerned the Malacca Strait and the adjoining Singapore Strait.64 Long among the world’s most important passageways both commercially and strategically, the Malacca and Singapore straits were becoming even more important at this time. As its economy surged in the 1960s Japan imported more and more oil from the Middle East. By the late 1960s about 90 percent of Japan’s oil supplies were carried by tankers that passed through these straits. During the 1960s there was a great increase not only in the number but also in the size of the tankers passing through these waters. In the meantime the strategic importance of the straits to the two superpowers was also increasing. As a result of the Guam Doctrine that President Nixon announced in 1969 the US navy was beginning to place even greater importance on the mobility of its vessels than it had in the past. The Malacca and Singapore straits were among the waterways that it depended on to maintain the maximum possible freedom of movement. The straits were, if anything, even more important to the rapidly expanding Soviet navy, which was building up its presence in the Indian Ocean. With the closure of the Suez Canal during the Arab-Israeli war of 1967 Vladivostok became the closest Soviet port to the Indian Ocean. The shortest route from that port to the Indian Ocean passed through the Singapore and Malacca straits. The Indonesian, Malaysian, and Singaporean governments found these developments extremely disturbing. Small oil spills had already damaged the marine environment of the Malacca Strait, which was one of the main fishing grounds in Southeast Asia. Officials in all three countries dreaded the environmental catastrophe that a supertanker could cause if it were to break up in this passageway as the Torrey Canyon had in the English Channel in 1967. Their fears were well founded, since both the southern part of the Malacca Strait and the Singapore Strait are narrow and shallow. As the number and size of the tankers increased

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so too did the chances of collisions, groundings, and major oil spills. The passage of the superpowers’ warships through this waterway also made them uneasy both because some carried nuclear weapons and because of the possibility of some sort of clash between them in the straits. The announcement by the British government in January 1968 that it would be withdrawing its military forces from Southeast Asia only added to the worries of the three coastal states. Despite “any initial satisfaction” that the Indonesian government might have experienced at the impending departure of British forces, Leifer remarks, “the prospect of the Russians taking the place of the British became a cause of real concern, given their use of the Straits of Malacca as a major corridor of access to the Indian Ocean”.65 Acutely aware as it was of the navigational hazards of the Malacca and Singapore straits, the Japanese government approached the governments of the three straits states about the possibility of conducting a survey of these straits. Seeing the benefits of such a survey, the three governments signed a memorandum of understanding with Japan in January 1969 regarding a preliminary survey of the straits. That survey found about twenty areas posing navigational hazards to very large tankers that required a detailed survey. In July 1970 the four governments agreed on the need for such a survey and decided that it would be conducted in two parts. During the latter part of 1970, while the first part of the survey was being conducted, the Japanese government approached various other governments around the world to propose an international body to manage the two straits. Its main objective was to introduce a traffic separation scheme in the strait as quickly as possible. In October it elaborated on its ideas at a meeting of the Sub-Committee on Safety of Navigation of the Inter-Governmental Maritime Consultative Organization (IMCO), the UN agency responsible for enabling states to reach agreement on matters related to international shipping. Because of the urgency to implement a traffic separation scheme, the Japanese delegate declared, “it is recommended that the necessary international action for the installation and maintenance of navigational aids be taken as soon as possible”.66 The reaction of the Indonesian and Malaysian governments was to express their strong opposition to any attempt to “internationalize” the two straits.67 As far as they were concerned, the responsibility of managing shipping in the straits ultimately lay with the three states adjacent to those straits, since, so the Indonesians and Malaysians claimed, all the waters in the southern part of the Malacca Strait (except for the tiny slither of high seas shown in figure 7.3) and in the Singapore Strait were part of the territorial seas of one or another of these states. The dispute between the Indonesian and Malaysian governments on the one hand and the Japanese on the other formed part of the broader disagreement between “straits states” and maritime states about passage through straits used for international navigation. Because of the unilateral extension by many states of their territorial seas to 12 miles many straits that had previously included passageways that were part of the high seas had now been fully incorporated into the territorial

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seas of the states bordering these straits. Exactly what freedoms and rights did foreign ships have in these waters? According to many coastal states that had extended their territorial seas these waters were subject to the innocent passage regime just like any other parts of their territorial seas. The maritime powers, led by the United States, staunchly resisted the prospect of subjecting their ships to the innocent passage regime because of the restrictions it placed on those ships and the authority it gave to coastal states. The 1958 Territorial Sea Convention defined passage as being “innocent so long as it is not prejudicial to the peace, good order or security of the coastal State”. The convention further stated that “Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal State”. Those laws and regulations had to conform to other articles in the convention as well as more generally to “the rules of international law”. Nevertheless, whether or not the passage of a particular ship was “innocent” was largely determined by the coastal state. The convention also required submarines “to navigate on the surface and to show their flag”. None of this was acceptable to the maritime powers. The requirement that submarines navigate on the surface was particularly objectionable to the US government, since if it were applied to straits that had previously been part of the high seas the Soviets would find it much easier to track the movements of the US navy’s nuclear-armed submarines. Unless a way could be found to accommodate US strategic interests the US government would continue to uphold the 3-mile limit and to regard any strait wider than 6 miles as having a corridor of high seas. Even if it avoided hitting bottom or another vessel, no nuclear submarine would have been able to navigate the shallow Malacca and Singapore straits while submerged without being detected. That, however, was irrelevant to the argument being mounted by the US government and its allies. Ships passing through those straits and all other straits more than 6 miles wide must, in their view, continue to enjoy the same high sea freedoms that they had long enjoyed when navigating these waters. While the Indonesian and Malaysian governments vigorously opposed any move to “internationalize” the Malacca and Singapore straits, the Singaporean government took a somewhat different view. Like its counterparts in Jakarta and Kuala Lumpur, it was concerned about the dangers posed by supertankers and foreign warships. But whereas they looked at the growing traffic through the straits almost entirely as a problem the Singapore government welcomed the benefits it brought to Singapore. Singapore was the major entrepôt in the region, its fledgling industries depended on shipping both to obtain raw materials and to send finished products overseas, ships often stopped at Singapore on their passage through the straits, and the city-state profited from the ship repair facilities it provided. Moreover, because its own tiny territorial sea was entirely hemmed in by the territorial seas claimed by its two neighbours Singapore’s only access to the high seas was through the straits. For all these reasons the government believed that as long as steps were taken to ensure the safety of navigation ships should

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be able to pass the straits as freely as possible. Because of this different outlook it was not prepared to join with the Indonesian and Malaysian governments in rejecting attempts to “internationalize” the straits. Thus, when officials from the three straits states met in Kuala Lumpur in the middle of June 1971 they were only able to agree that resumption of the surveys did not mean that they accepted the internationalization of the straits. At a meeting of the IMCO sub-committee early in July the Japanese government presented a paper outlining a draft agreement intended to ensure the safety of “international navigation” in the straits. The agreement contained an article establishing “The Malacca-Singapore Straits Board” to which the three coastal states would be obliged to present reports every year. The Indonesian delegate rejected this proposal out of hand. His government, he declared, “cannot accept any idea that might lead to the internationalization of the strait, in the sense that…the right to control and to supervise the strait is taken away from the coastal states”. Indeed, he added, the Indonesian government regarded “any discussion on the Strait of Malacca leading to the internationalization of the strait [as] inappropriate”. The Malaysian delegate immediately declared that the Indonesian statement “essentially conformed with the Malaysian Government’s policy on this issue”. At that point the sub-committee’s discussion of the Japanese proposal came to a halt.68 There the matter stood in the middle of July. A great deal was at stake for the Indonesians. They were fighting not only to uphold their sovereignty in Indonesia’s territorial sea in the southern part of the Malacca Strait but also gain acceptance of the law that delimited that territorial sea and the rest of its maritime territory and the law that regulated passage through these waters.

PANKORWILNAS By the early part of 1971 several different components of the Indonesian government were engaged in various initiatives related to the law of the sea and more generally to the country’s maritime territory.69 Among them were the continental shelf committee established by the Department of Mines that Mochtar chaired, a committee dealing with the Malacca Strait established by the department of communications, a committee within the Department of Foreign Affairs dealing with a law of the sea convention, and another in the Justice Department concerned with legislation as well as committees in other departments dealing with fisheries and marine research. Officials from various departments often served on committees set up by other departments. For example, Djalal, a Foreign Affairs official, was a member of the continental shelf committee. Negotiating teams also included officials from several departments. There were, so various officials believed, two problems with this arrangement. First, each of these bodies tended

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to pursue its own particular goals without a sense of the strategic interests of the state as a whole. Second, there was at the same time a great deal of overlap between the work of the different committees. All of them, most notably, dealt at least to some extent with basic questions related to the definition of Indonesia’s national territory. There was in addition to the desire to overcome these particular problems the broader push (finding ideological expression in the guise of Wawasan Nusantara) by the New Order to bring the various elements of the state firmly under its control. In these circumstances a number of officials from various departments recommended to the State Secretariat that the government form a body to coordinate all activities related to the definition of Indonesia’s national territory. The confusion created by the presidential decision regarding sailing permits may have strengthened the view that there had to be much greater coordination. In any case, just two months after that decision Suharto issued a decision establishing a Coordinating Committee for the Resolution of Problems Concerning National Territory and Seabed.70 All the existing committees dealing with problems related to national territory and the seabed were to be reviewed and brought under the umbrella of this new committee. As its name suggested, the committee, usually referred to by its Indonesian acronym Pankorwilnas, was to deal with the terrestrial as well as the maritime sphere but in Indonesia’s case the great bulk of territorial questions that had to be dealt with concerned the sea and the seabed. The committee was given the tasks of, first, “discussing policy matters related to the settlement of problems concerning national territory and the seabed” and, second, preparing “materials” (presumably reports, maps, and negotiating documents) needed to settle territorial questions with neighbouring states. Like most New Order institutions the committee was dominated by the military. It was to report to the minister of defence and security, who would appoint both its chairman and its secretary. Confirming the responsibility the Department of Mines already had in relation to seabed matters, the deputy chairman was to be appointed by the minister of mines. The other members were to be appointed by the ministers of foreign affairs, justice, communications, agriculture, and the interior. The structure of the committee reflected a fundamental feature of Indonesia’s archipelagic campaign: most of the experts in the law of the sea were civilians who had relatively little power in the New Order. For this reason Mochtar, Djalal, and other civilian officials had to work closely with those who did have power in order to achieve their goal. For the most part they had already begun to do this fairly effectively not only because of their own skills in dealing with the military but also because of individuals in the military who actively supported their work. One of these individuals was Colonel Trihardjo, who as well as being a former commander of the cavalry battalion based in Bandung was also a lawyer.71 At some point around this time Trihardjo had been assigned to deal with law of the sea questions on behalf of the Department of Defence. Since he was a

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member of the Indonesian delegation that negotiated the territorial sea boundary with Malaysia, he may have been given this task as early as the beginning of 1970.72 Whatever the precise date, he approached Mochtar and Djalal shortly after his assignment to propose (as Djalal recalls) the following arrangement: “I know nothing but have the power. You know everything but have no power. Let’s form an alliance between those who understand but have no power and those who do not understand but have the power.” Thus was born what Djalal referred to in his conversations with Mochtar as the Trihardjo Doctrine. According to Djalal, “when we wanted something Trihardjo would persuade people in defence all the way up to the defence minister.” They often gave him arguments that he could use in his discussions with the military leadership. Another military figure supporting Mochtar and Djalal’s work was General Sumitro, the powerful and influential head of the New Order’s main internal security instrument, Kopkamtib. In 1969 or 1970 he asked Djalal to become the secretary of a committee he had established to discuss foreign policy and security questions.73 Through individual officers such as Trihardjo and Sumitro the civilians leading the archipelagic campaign had a voice at the centre of power. *** By the middle of July 1971 there had been no announcement of the membership of the new committee. In the meantime the work of the officials leading the campaign continued. They had at this point negotiated three maritime boundary agreements, reaffirmed the government’s position in the UN, joined with the Philippines to promote the cause of archipelagic states in the AALCC, and proclaimed the government’s position in the Seabed Committee. But an immense amount of work remained to be done. They still had many maritime boundaries to negotiate including one with Australia in the Timor Sea. They had to recover from the setback caused by Suharto’s decree requiring foreign ships to obtain sailing permits before passing through “Indonesian waters”. They had to defend the Indonesian-Malaysian position on the Malacca and Singapore straits and, if at all possible, arrive at an understanding with their Singaporean counterparts about the status of these waters. They also had to negotiate with the Philippines and other states claiming or intending to claim archipelagic status to reach a common understanding of exactly what an archipelagic state was. Their most immediate task, however, was to prepare for the summer session of the Seabed Committee.

CHAPTER 8

The Seabed Committee 1971–72 Committee Seabed The 1971–72

The Indonesian government was now pursuing its campaign to gain international recognition of its archipelagic claim on many fronts. But because of its role as the preparatory committee for the upcoming conference the focus of this campaign was the Seabed Committee. Every step taken in other places—whether a meeting of the AALCC in some Asian or African capital or a boundary negotiation in Jakarta or the capital of a neighboring state—was at least partly designed to gain support within the committee and, ultimately, recognition of the principles embodied in Law No.4. At the very least Indonesian officials wanted to make sure that unlike at the 1958 and 1960 conferences the question of archipelagos was on the agenda at the upcoming conference. Ideally, the Seabed Committee would go much further than placing that question on the agenda and prepare draft articles on archipelagos that reflected Indonesia’s legislation. They also wanted any draft articles prepared by the committee to reflect Indonesia’s position on straits. As the Indonesian delegation arrived in Geneva for the summer session that began on 19 July 1971, however, both these goals seemed a very long way off.

THE SUMMER SESSION OF 1971 During the summer session delegates continued to sketch out their governments’ views on the issues before the committee. Delegates also submitted proposals on a variety of subjects, particularly on an international regime for the seabed, and engaged in a great deal of discussion and maneuvering regarding the agenda for the conference. In the course of all these proceedings there were important developments, some rather worrying, on the two issues that mattered the most to the Indonesian delegation.

Archipelagos On 26 July the observer for Fiji, Donald McLoughlin, announced that his country, which had gained its independence from Great Britain the previous year, planned to become an archipelagic state as well.1 As he told the committee, 167

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his government’s main concern was to protect the fishery resources in the waters near Fiji’s islands from the predation of powerful foreign fishing fleets. After reviewing the history of the question of archipelagos in international law, McLoughlin argued, as Mochtar had in 1957, that the ICJ’s ruling in the Anglo-Norwegian Fisheries case could be applied to “mid-ocean” archipelagos such as Fiji just as it had been to the skjaergaard. Also like the Indonesians and Filipinos McLoughlin argued that there should be no precise limit on the length of the straight baselines running between the outermost points of the archipelago. The only requirement would be that those straight baselines should conform to the general shape of the archipelago. But in several respects the archipelagic state he envisaged differed from the Indonesian and the Philippine cases, as indeed did those two from each other in a number of ways. Five of these differences were particularly important. First, they had different conceptions of the status of the waters inside the straight baselines. Since the Fijian government’s main aim was to protect fishery resources rather than to ensure national security, McLoughlin declared that the waters inside the straight baselines would be “territorial waters” rather than internal waters, as they were in the Indonesian and Philippine cases. By “territorial waters” he appeared to mean territorial sea. Second, following on from this difference, they dealt with the question of the passage of foreign ships differently. In Fiji’s case, McLoughlin said, these ships would be subject to the innocent passage regime just as they were in the territorial sea. Ships passing through “Indonesian waters” were also subject to innocent passage, but in Indonesia’s case innocent passage was a concession that the government guaranteed rather than a right under international law. Moreover, Indonesian law required foreign warships to notify the government before passing through “Indonesian waters”. Finally, in the Philippines case foreign warships had neither a right under international law nor a guarantee from the government but instead had to obtain permission before passing through the archipelago.2 During the summer session a Philippine delegate remarked that his government was giving the whole question of passage careful study but he also said that it saw no particular problem with the existing arrangement.3 Third, the three states also defined their territorial seas in different ways. According to McLoughlin, Fiji’s territorial sea would continue to be 3 miles wide. The only difference was that it would now be measured from the straight baselines. Indonesia’s territorial sea was also measured from its system of straight baselines but was of course 12 miles wide. In the Philippines case the territorial sea extended out from its system of straight baselines but it had no fixed width. Instead, according to Philippine law, it extended out as far as the treaty limits (see figure 8.1). Thus, its claimed territorial sea was less than 3 miles wide in some places and more than 250 miles wide in others.4 Complicating the situation still further, the Fijian government planned to have an “exclusive fisheries zone” extending out to 12

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miles from the same baselines used to delimit its territorial sea. Neither Indonesia nor the Philippines had such zones. Fourth, they took different approaches to the question of whether all the islands of a particular state should be enclosed in a single system of straight baselines. Although McLoughlin rejected any precise limit on the length of straight baselines, he

Figure 8.1 The territorial sea and internal waters of the Philippines according to Republic Act No.3046 of 1961

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did not go so far as to suggest that there be no restrictions whatsoever on the drawing of straight baselines. Indeed, he declared that Fiji would not have one single system of straight baselines enclosing all of Fiji’s islands but would instead have a system that would enclose all the main islands but not a few remote islands such as those in the Rotuma Group about 250 miles to the north of the main group of islands. This meant that there would be large areas of high seas between the main group of islands on the one hand and Rotuma and the other outlying islands on the other. The Indonesian and Philippine systems of straight baselines of course enclosed (or were intended to enclose) all the islands belonging to Indonesia and the Philippines. Finally, there was also a subtle but potentially important difference in the way the states defined the turning points they would use to delimit their straight baselines. According to Law No.4, Indonesia’s baselines were to “consist of straight lines connecting the outermost points on the low water mark of the outermost islands”. Similarly, the law defining the Philippine system of baselines stated that these consisted of “straight lines joining appropriate points of the outermost islands of the archipelago”.5 In contrast, the Fijian government planned to draw its straight baselines “around the outer extremity at low-water-mark of all the islands or drying reefs”.6 Using drying reefs of course had the potential in Fiji’s case to greatly increase the area enclosed by the straight baselines. None of these differences were discussed in the formal meetings of the Seabed Committee or the sub-committees. Nevertheless, the summer session highlighted just how great the differences between the archipelagic states were. The great danger for the Indonesians was that the maritime powers or, worse, states generally might, if they decided to support the concept of an archipelagic state in some form, support a version more like Fiji’s than Indonesia’s. Despite Fiji’s use of drying reefs as turning points the Fijian model was far less objectionable to the maritime powers simply because of its more accommodating approach to the passage of foreign ships. The need for archipelagic states to arrive at a common position was becoming ever more urgent. During the course of his statement McLoughlin appears to have introduced a new term—“archipelagic waters”—into the vocabulary on the law of the sea. He used this term to refer to both the waters inside the straight baselines—which the Fijians called territorial waters but the Indonesians and Filipinos called internal waters—and the territorial sea measured out from those baselines. A few days later Mochtar used “archipelagic waters” in the same way during a statement to Sub-Committee I.7 Neither McLoughlin nor Mochtar placed any particular significance on the term. They used it merely as a convenient way of referring to all the waters under the jurisdiction of an archipelagic state. But now the term was part of the lexicon, ready to be called on and, if so desired, redefined at some future date.

Straits On 3 August the leader of the US delegation, John Stevenson, submitted three draft articles.8 The first article gave states the right to extend their territorial seas

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out to 12 miles. In keeping with US policy, however, this right was tied to a second article dealing with straits used for international navigation. According to the second article, “all ships and aircraft in transit shall enjoy the same freedom of navigation and overflight, for the purpose of transit through and over such straits, as they have on the high seas”. Foreign vessels would have this freedom regardless of whether these straits formed part of the territorial seas of the states bordering the straits. In a sentence intended to make this proposal more acceptable to straits states the article gave coastal states the right to “designate corridors suitable for transit by all ships and aircraft through and over such straits”. According to Stevenson, the US government had not made this proposal merely to satisfy its own interests. Echoing the sentiments Arthur Dean had expressed in 1958, though now with an implicit acknowledgement that the US was not the only superpower, he explained that the peace and prosperity of the world depended on maintaining the maximum possible mobility on the oceans. “To contemplate changes in the law of the sea that might reduce that mobility,” he declared, “is to contemplate changes affecting fundamental security interests not only of states compelled to maintain significant military preparedness but also of states that rely on the stability created by a political and military balance to pursue other important national goals and to avoid diverting too much of their attention and resources to matters of security.” In his explanation of the second article Stevenson declared that “subject only to the right of free transit” the straits covered by this article would “retain their national character in each and every respect”. Thus, for example, coastal states would be able to enforce traffic safety regulations in these straits. They would not, however, be able to use these regulations as a means to undermine the right of free transit. Unlike innocent passage the right of free transit would not be subject to the coastal state’s interpretation. Nevertheless, as Stevenson portrayed it, the two articles represented a major concession on the part of the US government, since it was prepared to agree to an extension of the width of the territorial sea to 12 miles and give up some of the high sea freedoms that had long applied to straits. In combination with the third article, which dealt with fishery resources, they would, he hoped, form the basis of an accommodation satisfying the interests of states generally. The Indonesians and Malaysians were, along with the Spaniards and other strait-state representatives, anything but satisfied. Because of the threat foreign warships posed to its national security, Mochtar told Sub-Committee I on 6 August, Indonesia’s “delegation took the view that the passage of warships through straits forming part of the territorial sea of a State should be subject to regulation by that State. The purpose would not be to prevent passage but rather to make sure that it would not be harmful to the coastal State and its population.” Indonesia, he added, referring to Stevenson’s proposal, did not accept “the concept of ‘corridors of free passage’ through the territorial sea”.9 A few days later a Malaysian delegate, K.C. Vohrah, proclaimed in Sub-Committee II that his government insisted on

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regulating the passage of tankers and warships through its territorial sea in the Malacca Strait. Like Mochtar, Vohrah rejected the concept of “corridors of free passage”. Indeed, he declared, Malaysia required foreign warships to obtain authorization before passing through its “territorial strait”.10 Hasjim Djalal joined the attack at the next meeting of the sub-committee. In his view the freedom of the seas had mainly benefitted the maritime powers, which had used that freedom not only “for trade purposes but also for purposes of war and conquest”. He rejected the notion at the heart of the US proposal that acceptance of 12 miles as the width of the territorial sea should be conditional on agreement on other matters. Not only should all waters that were part of a state’s territorial sea be subject to the innocent passage regime whether or not they were part of a strait used for international navigation, but also that regime should be toughened in light of both the environmental damage that could be caused by tankers and the security interests of coastal states.11 Between the Indonesian-Malaysian position and the one espoused by the US government lay a chasm. The most vigorous supporter of the US proposal during the summer session was Australia. Speaking a few days after Djalal’s attack, an Australian delegate presented an argument that closely followed Stevenson’s reasoning and outlined a straits regime identical to Stevenson’s.12 Having, so he believed, begun to build an understanding with his Australian counterparts, Mochtar was, as he told Kenneth Bailey in Canberra, where he made a flying visit during the final stages of the summer session to give an address to the Pacific Science Congress, “surprised, and perhaps he could say disappointed” by the Australian statement.13 He found Australia’s view particularly puzzling since, as he understood it, the Australian government had been satisfied with the informal arrangement it had for the notification of the passage of warships. In response, Bailey “referred to the precariousness…of passage in waters Indonesia claimed”, mentioning in particular Suharto’s decision requiring foreign ships to obtain “sailing permits”. Mochtar explained that that decree was now “moribund and inoperative”, noted that “Australia had rightly ignored it”, and mentioned, as he had told Bailey in May, that he and some of his colleagues were trying to have it withdrawn. He then raised the possibility, as, according to Bailey, Hasjim Djalal had earlier in the year, of some sort of bilateral arrangement that would give Australia certain rights that the Indonesian government would not be prepared to accept as part of an international convention. In particular, such an arrangement might make it possible for Australian warships to pass through Indonesian waters without prior notification. The Indonesian government, he suggested, would not be willing to accept such an arrangement with Japan or China or perhaps with the US. The Australian government, however, was decidedly cool about the possibility of such an arrangement, since its success would depend entirely on the strength of Australia’s relationship with Indonesia. The Indonesian government, so it seemed, could easily abrogate the arrangement if relations between the two countries took

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a turn for the worse. Whatever chance the Indonesian government had had of gaining the support of Australia through some sort of bilateral arrangement had now evidently disappeared. *** By the time the summer session ended on 27 August a number of ideas had emerged that seemed to provide a basis for further discussion. Most notably, the idea of an economic zone extending 200 miles from the same baselines used to delimit the territorial sea attracted the interest of many delegations including Indonesia’s. “Even if at present developing nations were unable to exploit such an area themselves,” Mochtar observed, “they would at least be able to reserve it for future generations, or to lease it out now on terms favourable to them.” One fundamental problem with the idea was that it disadvantaged landlocked and other states (for example Singapore) unable to declare economic zones. In order to win the support of those states both Mochtar and Djalal suggested that they be given priority in the benefits to be derived from the exploitation of the seabed beyond national jurisdiction.14 But there was by no means a consensus on the idea of an economic zone, as several Latin American states continued to assert their claims to 200-mile-wide territorial seas, states with distant-waters fishing fleets resisted moves that would restrict the area where those fleets could operate, the maritime powers worried about the possible implications of the idea for the freedom of navigation, and the landlocked states remained profoundly skeptical. In fact, the differences on this and many other matters were so great that Sub-Committee II was finding it difficult even to perform its most immediate task of drawing up a list of the subjects and issues to be considered at the upcoming conference. Many delegations and groups of delegations proposed items to be included on the list. The Indonesian, Malaysian, and Philippine delegations joined with twenty-nine other delegations, all but one of which (Yugoslavia) represented Africa, Asia, and Middle Eastern states, to submit a list of twenty items. Item 13 was simply titled “Archipelagos”. Item 3, “Straits”, had two sub-items: “Straits used for International Navigation” and “Innocent passage”. This wording was entirely unacceptable to the maritime powers because of the apparent assumption that straits used for international navigation would be subject to the innocent passage regime. Near the end of the session a small working group that included Indonesia was given the task of preparing a comprehensive list of subjects but because of the pressure of time it did not finish its work.15 As the summer session drew to a close Mochtar was facing a difficult personal decision. He had been elected to the People’s Representative Council (DPR) at the elections in early July. Were he to take up his seat he would almost certainly have to give up both his position at Padjadjaran University, where he was the vice rector as well as a professor, and in the government as an adviser to the Department of

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Mines. Whether he would have been able to retain some involvement in law of the sea matters in some other capacity is unclear. The path he was considering in the latter part of August was to withdraw from the DPR but to take up a seat in the People’s Consultative Assembly (MPR). Since that body met only once every five years, he could easily be a member of the MPR while continuing in all these other positions.16 Soon he did decide to withdraw from the DPR (we have been unable to find out whether he took up a seat in the MPR instead). In the midst of pondering his future Mochtar had been appointed vice chairman of Pankorwilnas, which was to be chaired by Vice Admiral R. Subono, Chief of the General Staff.17 Mochtar was, he told Kenneth Bailey, not entirely sure whether he welcomed the formation of Pankorwilnas, as he hoped it would not take over his work as Indonesia’s chief seabed boundary negotiator. At the same time, however, he believed that his involvement in Pankorwilnas might give him a more prominent role in both territorial sea and land boundary negotiations.

THE MALACCA STRAIT Following their rejection of Stevenson’s draft article on straits, the Indonesian and Malaysian governments moved quickly to try to quash any further attempts by Japan to “internationalize” the Malacca Strait. In September the secretary-general of the IMCO agreed to a request from all three coastal states that there be no more discussion within the IMCO of navigational safety in the straits until the three states presented their own plan to deal with this problem. The following month the Indonesian minister of communications, Frans Seda, visited Singapore and Kuala Lumpur in an effort to find common ground between the three governments. The result of his negotiations was a statement released simultaneously in the three capitals on 16 November. The statement proclaimed that the safety of navigation in the “Straits of Malacca and Singapore” (as the three states agreed to call the waterway that they shared) was the responsibility of the three coastal states and that the three governments would establish a body made up only of these states to “co-ordinate efforts for the safety of navigation” in these straits. Having made these points, it added that navigational safety and the internationalization of the straits were separate questions. This distinction was important because while the Singaporeans agreed that navigational safely should be the responsibility of the three states they still disagreed with their Indonesian and Malaysian counterparts on the status of the two straits. The statement got around this problem as best it could by referring first to the view of Indonesia and Malaysia and then that of Singapore. Thus, the statement declared that the Indonesian and Malaysian governments “agreed that the Straits of Malacca and Singapore are not international straits”. By using this wording the two governments were not asserting that the Malacca and Singapore straits were not used for international navigation but simply

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that they were not, and would never be, subject to any sort of international regime. In keeping with their by now frequently stated policy, the two governments added that they fully recognized use of these straits “for international shipping in accordance with the principle of innocent passage”. For its part, according to the statement, the Singaporean government “takes note” of this position. The statement concluded by announcing that “on the basis of this understanding, the three Governments approved the continuation of the hydrographic survey”.18 Suitably chastened, the Japanese government let it be known that their only concern was to ensure navigational safety in the straits and planning began immediately on the second stage of the survey. Although the main target of the joint statement was the Japanese government, whose manoeuvres in the IMCO had so angered the Indonesians and Malaysians, its reaffirmation of the Indonesian-Malaysian position on passage through the Malacca Strait was aimed at all the leading maritime states. As it happened, a delegation led by Stevenson was at the time touring the region to discuss law of the sea issues. According to a Singaporean source, the Indonesians wanted to have the statement released before the delegation reached Jakarta.19 In the event, it was released while the delegation was on its way from Kuala Lumpur to Singapore, its final stop before Jakarta. Stevenson went over the US position on straits in Singapore and Jakarta, as he had in Kuala Lumpur, but refrained from speaking about the statement in public.20 In fact, none of the maritime powers made public comments about the statement at this time. In any case, their position was of course clear to all, as too, so it appeared, was their ability to sail their warships wherever they wished. In the middle of December the nuclear-powered USS Enterprise, the largest aircraft carrier in the world, and other ships from the US Seventh Fleet sailed through the Singapore and Malacca straits on their way to the Indian Ocean at the time of the Indo-Pakistani war. A few days later six ships from the Soviet Pacific Fleet took the same route to the Indian Ocean, where several other Soviet warships were already stationed. In January, at the end of the war, the Enterprise passed through the straits again on its way back to its station off the coast of Vietnam.21 At the very time US and Soviet warships were sailing through the Malacca Strait in December Mochtar and his colleagues were busy negotiating two more seabed boundaries in the strait. The first to these was a boundary between Indonesia and Thailand. Having agreed to use the median line between their territories as the boundary, the Indonesian and Thai negotiating teams appear to have had no trouble agreeing on the basepoints that they would use to draw this boundary. The Indonesians used as basepoints three of the turning points in Indonesia’s system of straight baselines but not the baselines themselves. Two of these three basepoints were on the north coast of Sumatra while the third was on Pulau Weh. The Thais used just one basepoint, Ko Racha Noi, a small island about 25 miles south of Phuket. According to Prescott, there is no evidence the Indonesians objected to the use of this island as a basepoint even though that had the effect of shifting

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the boundary closer to Sumatra than if the Thais had used a more prominent feature as their basepoint. Adopting the same accommodating approach that had characterized their negotiations with Malaysia in 1969, the Indonesians quickly reached agreement with the Thais on a boundary that consisted of a single segment 89 miles long.22 Then, a few days later, they joined with their Thai and Malaysian counterparts to complete the “jigsaw of seabed boundaries” at the northern end of the Malacca Strait. As in any boundary negotiation involving three states the negotiating teams had to agree on the point—the tri-junction point—at which their boundaries would meet. Rather than using the equidistance principle they arrived at a point that was closest to Indonesia and furthest from Thailand. Having established the tri-junction point, they then drew a segment that linked the northern end of the seabed boundary between Indonesia and Malaysia to the tri-junction point and another that linked that point with the southern end of the new boundary between Indonesia and Thailand. These two segments completed Indonesia’s continental shelf boundaries with Malaysia and Thailand in this area. At the same time they drew a boundary between Thailand and Malaysia. Partly because of the way they had determined the tri-junction point Thailand gained a much greater area than it would have if the negotiators had used the equidistance point. Again, the result of the negotiations, formalized in an agreement signed on 21 December, displayed the Indonesians’ willingness to accommodate their neighbours.23 By the end of 1971, less than three years after initiating boundary negotiations, Mochtar and his colleagues had negotiated a total of five maritime boundary agreements. From the Indonesians’ point of view these agreements were of course important in their own right, as they removed a potential source of conflict. But they also saw them as steps towards gaining recognition of Indonesia’s archipelagic claim. They demonstrated Indonesia’s good intentions, they set the stage for further negotiations, and, at least as the Indonesians saw it, they contained within them some sort of recognition of Law No.4. Still, the ultimate goal was recognition in an international convention. In January 1972 the Indonesian delegation to a meeting of the AALCC in Lagos tried to take a further step in that direction when it presented a paper on the “Concept of archipelago” on behalf of both Indonesia and the Philippines. As happened at the previous meeting, however, other delegates raised questions about such basic matters as the criteria that would be used to draw straight baselines, the status of the waters inside these baselines, and the navigation rights of foreign ships.24 A great deal of work remained to be done. Part of the work was simply to convince as many other governments as possible of the importance of the archipelagic concept to the Indonesian government. One opportunity to do this came in February when a former British defence official and the British naval attaché in Jakarta met with a number of Indonesian officials including Mochtar, Djalal, Subono, and the chief of naval staff, Admiral Sudomo. The two British visitors found that “the Indonesians will never

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depart” from the idea that “the inland sea is all theirs for whatever purpose” and that “they regard the archipelago as sacrosanct for the security of the state and its economic well-being”. The naval attaché reported to London that in his view the Indonesians would never be party to any agreement that did not recognize their archipelagic concept. “Once it is recognised”, he added, they “seem prepared to be flexible”. There was of course a limit to their flexibility. They would agree to nothing that undermined Indonesia’s national interest, of which they would be the sole judges.25 But the message to the maritime states was clear: there was at least some room for negotiation. At the very time the discussions with the two British visitors were taking place Suharto made what appears to have been his first public statement on the archipelagic question. Following a meeting with Ferdinand Marcos in Manila the two presidents issued a communiqué that declared in relation to the upcoming conference that “their two countries should take concerted efforts in order that their basic archipelago position may be recognised and agreed to by the international community”.26

THE SPRING SESSION OF 1972 Before the Indonesian and Philippine governments could hope to gain recognition of “their basic archipelago position” they had to work not only with each other but also with Fiji and any other states planning to claim archipelagic status to arrive at an understanding of what an archipelagic state was. The large group of developing states known as the Group of 77 was favorably inclined towards the archipelagic concept but those states were unsure exactly what version of that concept to support. Once they had agreed on a concept and gained the firm backing of the G77, the archipelagic states could, according to Satya Nandan, the deputy leader of the Fijian delegation, persuade the maritime powers of the “inevitability of acceptance of our position by the great majority of states”. Faced with this reality, the maritime powers would then, Nandan argued, be much more willing to accommodate the interests of the archipelagic states.27 But the task of arriving at an understanding among the archipelagic states appeared difficult. As had become clear at the previous session of the Seabed Committee, Indonesia, the Philippines, and Fiji had three different conceptions of an archipelagic state. They differed in particular in relation to the status of the waters inside their straight baselines and the passage of foreign ships. The delegations from all three states arrived at the spring session of the Seabed Committee in New York determined to work out a common position. They were joined in this endeavor by the delegation from Mauritius, which had plans to claim archipelagic status too. Much of the initiative for discussions between the four delegations came from the Fijian delegation. The Fijians were as determined as their Indonesian and

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Philippine counterparts to gain recognition of the archipelagic concept, but they were more willing to accommodate the interests of the maritime powers as far as passage was concerned. This was partly because Fiji’s government did not have the same fears about its security that Indonesia and the Philippines had but it was also because the unimpeded passage of merchant vessels through Indonesian and Philippine waters benefitted Fiji’s economy. Right from the start the Fijian delegation saw itself as a bridge between the Indonesians and Filipinos on the one hand and the maritime powers on the other. Its aim was to gain recognition of Fiji’s archipelagic status by moderating the Indonesian-Philippine position. With this aim in mind Nandan had informal meetings with the Indonesian and Philippine delegations as soon as they had arrived in New York. On 1 March Nandan also attended a meeting at the Australian mission to the UN at which Djalal was also present. On that occasion Djalal indicated that the Indonesians might be flexible on some issues. According to Australian notes on the meeting, he declared that the Indonesian government would insist that submarines travel on the surface but then “indicated that this was not necessarily their final position”. He reaffirmed his government’s insistence that foreign warships give prior notification of their passage but he added that that notification could be in a very general form, stating for example that a ship would be passing through a particular channel in “the first week of March”. He also indicated that Indonesian officials were giving thought to creating (as already legislated in Regulation No.8 of 1962) lanes where “some of the rules normally applicable to the territorial sea [as compared to the country’s internal waters] would operate”.28 Sometime over the next few days Nandan and Donald McLoughlin (who arrived shortly after the session began) met first with Djalal (“their key man on the Law of the Sea”) and then the leader of the Philippine delegation, José Inglés.29 By the end of the first week of the spring session the Fijian delegation had gained a much clearer idea of where the Indonesians and Filipinos stood and how much they might be prepared to shift their positions. Apparently as a result of these meetings the Fijian delegation decided that if it wanted the Indonesians and Filipinos to moderate their positions Fiji would first have to move slightly closer to those positions. This was apparent when McLoughlin and Nandan met Australian and New Zealand delegates on 7 March.30 McLoughlin explained that “so far as Fiji is concerned, they had been prepared to allow transit through the archipelago without notification and with submarines submerged” but “had come to the view…that it would be desirable to designate corridors and to require ‘general notification’ of movements. He suggested that the regime for passage through archipelagoes31 might be on the same basis as international straits.” When the leader of the Australian delegation, Ralph Harry, asked why Fiji did not designate sea lanes where foreign ships would have high sea freedoms, McLoughlin explained that “Fiji and its archipelago friends were sensitive to any derogation from their recently acquired sovereignty”. When

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Harry persisted with the idea of “high seas transit over recognised shipping lanes”, McLoughlin added that the Fijian government was worried about the activities of Soviet fishing vessels and the passage of French naval ships involved in nuclear testing in the South Pacific. Harry’s representations did not deter the Fijians from pursuing their new course. When Nandan addressed the Seabed Committee on 10 March he reaffirmed the principles McLoughlin had presented the previous July but sketched out a more restrictive passage regime. Foreign ships and aircraft would have the same “right of communication” in archipelagic waters that they would have in “international straits” but that right would be confined to designated sea lanes or corridors. Moreover, the right of communication “would be subject to regulations laid down by the archipelagic State regarding safety of navigation and protection of the environment and to police, customs and quarantine regulations and should in no way restrict the exclusive rights of that State to exploration and exploitation of the natural resources of the area”.32 Having toughened their stance in this way, the Fijians suggested to their Indonesian, Philippine, and Mauritian counterparts that the four delegations hold a meeting where they would work out a common position. At that meeting, which was held at the Indonesian mission, apparently on 13 March,33 the delegations made a crucially important decision. They made a sharp distinction between “archipelagos of states” such as the Andaman or Hawaiian islands, which were part of continental states, and “archipelagic states”, which were states such as their own that were made up entirely of islands. Their attention, they decided, would be entirely on archipelagic states.34 By doing this, they emphasized the special nature of their status. They also distanced themselves from any claims that those continental states such as India that had archipelagos might make, thus reducing, they hoped, the concern the maritime powers had about the indiscriminate enclosure of the world’s oceans. The four delegations also appear to have gained a greater appreciation of what they might have in common. The Fijian delegation argued that while the Indonesian and Philippine governments called the waters inside their straight baselines internal waters the Indonesians in particular treated those waters as if they were in fact territorial waters. The Fijians “suggested that the interests of international navigation might be served by designating certain lanes or corridors through archipelagic waters which would guarantee international navigation subject to innocent passage, as opposed to the High Seas regime implied in the demand [by the maritime powers] for ‘free transit’”. According to Nandan, the Indonesian and Philippine delegations were attracted to this approach, because, so he wrote a few weeks later, it gave them “an acceptable way out of their present difficult positions”.35 Having come somewhat closer in their views, the delegations undertook to draft a number of principles reflecting the understanding they had reached. At a subsequent meeting Djalal, Estelito Mendoza of the Philippines, Victor Glover of Mauritius, Nandan, and McLoughlin drafted the following four principles.

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The first principle defined an archipelagic state as a state “whose component islands and other natural features form an intrinsic geographical, economic and political entity, and historically may have been regarded as such”.36 It also gave such a state the right to “draw straight baselines connecting the outermost points of the outermost islands and drying reefs of the archipelago from which the width of the territorial sea of the archipelagic State may be measured”. The inclusion of drying reefs accommodated the Fijian position. The second principle dealt with jurisdiction. “The waters within the baselines, the superjacent airspace, the seabed and the subsoil thereof, regardless of its depth or distance from the coasts, as well as all their resources,” it declared, “fully belong to the sovereign rights of the archipelagic State.” The clumsy wording suggested a form of jurisdiction somewhere between exercising sovereign rights and possessing full sovereignty. The third principle dealt with the passage of foreign vessels and aircraft. According to this principle, innocent passage of such vessels and aircraft “shall be allowed in accordance with national legislation of the archipelagic state and with the existing rules of international law”. This wording gave equal weight to national and international law. The third principle added that passage “shall be through [such] sealanes or airlanes as may be designated for that purpose by the archipelagic State”. Finally, the fourth principle declared that the passage of “State vessels or aircraft through the designated sealanes or airlanes shall be subject to prior notification to the archipelagic state”. Though written mainly with warships and military aircraft in mind, this article applied to any ship or plane owned by a foreign government. The four delegations did not regard these principles as necessarily representing their final position. Moreover, they would need at some stage to convert these principles into draft articles. But they had made a start. Following the meeting at which the principles were drafted further discussion took place within each delegation and between the delegations and their governments as well. *** By the time the archipelagic states drafted the four principles an event in Tokyo had wrenched the attention of the Indonesian delegation and in fact of the government in Jakarta back to the ongoing problem of the Malacca Strait. On 3 March, in a “somewhat stage-managed exercise” that appears to have been timed to exploit the humiliation that the Japanese had experienced as a result of President Nixon’s visit to Beijing,37 the Soviet ambassador to Japan called on Japan’s vice foreign minister to express the Soviet’s Union’s view that (as the Associated Press reported it) the Malacca Strait was “an international waterway which must be kept open for free passage of foreign ships”.38 The Soviet démarche, as it was referred to using diplomatic terminology, infuriated the Indonesian and Malaysian governments. After talks with Malaysia’s deputy prime minister, Tun Ismail, the Indonesian foreign minister, Adam Malik, declared that the straits were not “open sea” and that

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if any ships tried to violate the coastal states’ authority they would have to face the consequences. The following day he raised the possibility that the coastal states might require ships intending to pass through the straits to provide information on their cargos before transiting; that requirement would apply to warships as well as merchant vessels. The Chinese government rushed to show its support for Indonesia and Malaysia by attacking the Soviet Union for its “assault” on their sovereignty.39 Ismail then reinforced Malik’s threat by declaring that the Malaysian government had “ways” to enforce its authority in the straits.40 As these events unfolded the other maritime states scurried to decide whether they should follow the Soviet lead and make some sort of formal protest against the tripartite statement of 16 November. They did not want to provoke even more anger from the Indonesians and Malaysians nor did they not want to appear to be ganging up on Indonesia and Malaysia. But some of them feared that silence on their part might be taken as acquiescence. On 16 March US officials reiterated the US position at the Indonesian Ministry of Foreign Affairs but without generating any publicity. For its part, the UK government decided that it would prepare an informal form of diplomatic representation known as a bout de papier reaffirming its view on the straits. Though annoyed at the way the USSR had involved it in its diplomatic move, the Japanese government, in response to a question in the Diet, reaffirmed its view that the Malacca and Singapore straits were international straits and in fact part of the high seas. A number of other maritime states including Australia studiously avoided making any sort of diplomatic moves over the issue. At this point Singapore’s foreign minister, S. Rajaratnam, who feared that the straits could become a battle ground in the Cold War, tried to maintain the finely balanced understanding that Singapore had with Indonesia and Malaysia. On 17 March he stated that as far as his government was concerned the straits “should be freely accessible to all nations without discrimination” but he also emphasized that all ships would have to observe regulations designed to avoid pollution, ensure navigational safety, and protect the security of the coastal states. While referring to the straits’ long history as an international waterway, Rajaratnam argued that the question of the status of the Malacca and Singapore straits should be resolved at the upcoming conference as part of a consideration of the general question of straits. For the time being, he said, repeating the position his government had expressed in the tripartite statement, Singapore could “go no further than take note of the views of its neighbours”.41 In private talks with an Australian official Rajaratnam’s permanent secretary and principal assistant secretary made it clear that Singapore did not support the internationalization of the straits but merely wanted to ensure freedom of passage through them. They were also amused by the presumption on the part of Indonesian and Malaysian leaders that their militaries could actually prevent the Soviet and US navies from passing through the straits.42 Two days after Rajaratnam’s statement the chairman of Malaysia’s state economic corporation, Tengku Razaleigh, who was also the treasurer of the

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country’s ruling party, proposed that the Malacca Strait become the “Suez Canal of South-east Asia” and that the coastal states levy tolls on all ships passing through it.43 Razaleigh’s proposal did not represent the government’s view. The Malaysian prime minister, Tun Razak, made this clear in a meeting with the British high commissioner the next day. “We could not do it,” he said. But he did not back down from the view Malaysia shared with Indonesia that the strait was not an international waterway.44 On the same day Razak was speaking with the high commissioner Adam Malik met with the Soviet Union’s roving ambassador for East Asia, L.I. Mendelevitch, in Jakarta. The ambassador restated his government’s view that the straits were an international waterway and told Malik that “Russia…would continue to recognize three-mile territorial waters for both Malaysia and Indonesia until such time as their respective 12-mile claims were ratified by a recognized international authority”.45 It was, according to Leifer, “‘a disastrous meeting’ as both sides stuck rigidly to their original positions”.46 The only point that Malik and Mendelevitch did agree on was that the general question of straits would have to be resolved at the upcoming conference. *** Such were the events that had taken place by the time several delegations spoke on the straits issue during the final stages of the spring session of the Seabed Committee. In an oblique reference to the Malacca Strait a UK delegate argued that there could be little dispute about which straits were “international straits”; he concluded by reaffirming his government’s support for the US article on straits.47 Then, two days later, a Soviet delegate, Boris Podserob, presented a forthright statement of his government’s position.48 He acknowledged that according to the Territorial Sea Convention straits used for international navigation that formed part of the territorial seas of one state or another were subject to the innocent passage regime but argued that that stipulation only applied to straits that were part of a state’s territorial seas at the time the convention was signed. Any waters that lay beyond the limit of a state’s territorial sea at that time were of course part of the high seas. No state bordering a strait could, by extending the width of its territorial sea, deprive foreign ships of the freedom they had enjoyed in those waters. For this reason, so Podserob argued, straits such as the Malacca Strait, Straits of Gibraltar, and the English Channel remained international waterways regardless of the width of the territorial sea. Following a Tanzanian delegate’s rebuttal of this line of reasoning (“the Soviet Union seems to think that the freedom of the seas increases the further it gets from the Soviet Union”) Hasjim Djalal declared that the Indonesian delegation reserved its right to respond to the Soviet statement at the first possible opportunity.

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By the time Djalal responded on 29 March there had been further developments in the conflict over the Malacca and Singapore straits. On one side, Mendelevitch had had as little success convincing Malaysian officials of the Soviet position as he had had in Jakarta, the British Embassy had delivered a bout de papier reaffirming the British view that the straits were “straits which are used for international navigation” and that “ships of all states have a right of unimpeded passage through such straits”,49 and the US ambassador had outlined his government’s views with the secretary-general of the Department of Foreign Affairs.50 On the other, Suharto’s political adviser, Ali Murtopo, had declared that “Indonesia would be almost inviting direct danger to her own defence if she allowed the Super Powers to use the strait without regard for national security”.51 This sense of danger loomed large in Djalal’s statement. Djalal ridiculed the hypocrisy of the maritime powers.52 It was, he argued, highly presumptuous of these powers to assume (as Stevenson had in the previous session of the Seabed Committee) that the free passage of ships through straits served the interests of all nations when in fact it only served their interests. Moreover, these powers were hardly being honest about their real intentions: they spoke of ships generally but what they really wanted was to give their warships the greatest possible mobility. Declaring that 12 miles was now generally accepted as the width of territorial seas, Djalal argued that there was no reason why Indonesia should be required to compensate other states by allowing unimpeded passage through its territorial sea. After all, he pointed out, the Soviet Union had not compensated the rest of the world when it declared the width of its territorial sea to be 12 miles. In any case, he told the committee, the Indonesian government, upholding as it did the right of innocent passage as defined by the Geneva convention, had never tried to stop foreign ships from passing through its waters. Indeed, it wanted them to pass through as quickly as possible in order to minimize the threat they posed to Indonesia. The government deeply resented that the maritime powers appeared to doubt Indonesia’s sincerity when it repeatedly declared that it guaranteed innocent passage. There was, he declared, every reason instead to doubt the sincerity of the maritime powers. Indonesia and other coastal states were not villains as those powers seemed to suggest but in fact “potential victims”. Indeed, permeating Djalal’s statement was a profound sense of Indonesia’s vulnerability. Tankers, from whose passage Indonesia gained no benefit whatsoever, threatened its marine environment and the livelihoods of coastal people. Foreign warships, involved in disputes that had nothing to do with Indonesia, might clash in Indonesian waters. Two submerged submarines might collide as they passed through a narrow waterway in opposite directions. But worst of all foreign warships posed a threat to Indonesia’s political stability. “Foreign warships and submarines”, he said, could “be used as conveyances for arms smuggling and other subversive acts to support potential dissident

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groups in a country, as has been shown on numerous occasions in our history”. Exactly which groups the government was worried about is uncertain. An Australian assessment of the area bordering the Malacca Strait at this time noted that none of the remnants of the PKI in the Riau Islands and Sumatra were “operational dissident groups” but added that, however unfounded, the fear of subversion by one group or another “weigh[s] very heavily in Indonesian foreign policy formulation”.53 But, as Djalal presented the government’s view in his statement, foreign warships threatened the country’s political stability even if they were not assisting dissident groups. “The mere presence of foreign warships and submarines in our waters,” he declared, “can be enough to cause political reactions domestically. The reactions will be extremely intensified if the warships, especially submarines, are found in our waters without our previous knowledge, and without us being able to explain the reason for their presence to the people of the region concerned.” Underlying the fears the government had of foreign ships was an acute consciousness of the government’s limited power to control what went on within the vast expanse of water enclosed by Law No.4. Indonesian officials knew that Japanese tuna boats operating in the eastern part of the country routinely flouted the terms of the Banda Sea Agreement. They even knew that the Japanese continued to violate the agreement despite knowing full well that the Indonesian government was aware of their activities.54 They also knew that the maritime powers could, if they chose to do so, ignore the requirement that they notify the government before sending their warships through Indonesian waters. The expanse of water was just too great and the navy’s capacity just too weak for the government to exercise effective control over what was going on in Indonesian waters. In these circumstances the Indonesian delegation to the Seabed Committee was desperate at least to gain recognition of the government’s right to exercise a measure of control over the waters it claimed. In the course of his statement Djalal also addressed the issue that had provoked his response. As far as the Indonesian delegation was concerned, he declared, neither “straits” nor “international” had a clear meaning. Indonesia, he reminded delegates, “is an archipelago and all the waters between and around the islands are our national waters”, namely, its internal waters and territorial seas. What the maritime powers called “international straits” were under Indonesian law “nothing more than part of our national waters”. The Indonesian government could not possibly accept some special right of “free transit” through international straits without potentially opening up all the passageways between the country’s islands to such a right. In any case, passage through Indonesia’s national waters had, he said, been proven to be adequately safeguarded by “the principle of innocent passage”. Thus there was no need whatsoever for the sort of regime proposed by the maritime powers. At no point did Djalal suggest any possibility of flexibility on Indonesia’s part.

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*** Although many delegates gave long statements putting forward their views on various contentious subjects, the main business of Sub-Committee II during this session was, as it had been during the previous session, to reach agreement on the agenda for the upcoming conference. In a move intended to resolve this issue the Indonesian delegation had joined with fifty-five other delegations, almost all of whom belonged to the Group of 77, that had, with the approval of the subcommittee, worked on a draft agenda. The draft agenda that they presented to the sub-committee on 23 March contained elements of the agenda submitted by the group of thirty-two states (including Indonesia) during the previous session that the maritime powers continued to find highly objectionable. In particular it listed, under the heading of “Straits”, “straits used for international navigation” and “innocent passage” as agenda items but made no mention of “free transit”. Although the draft contained a statement that the list of subjects should not be regarded as final, its sponsors resisted proposed amendments from the maritime powers. Thus the sub-committee failed to agree on an agenda during this session.55 Encouragingly for the Indonesians, however, there was no opposition to including an item simply titled (like an item in the thirty-two-state draft) “Archipelagos”. By the time the spring session was coming to a close delegates from the four archipelagic states had had the opportunity to consult their governments on the four principles that they had tentatively agreed on. As a result, the Indonesians wanted to make what Djalal described as minor drafting changes to the four principles, while the Filipinos wanted to make a number of major changes. They suggested rewording the second principle to make it absolutely clear that the waters, seabed, and subsoil within the baselines fully belonged to the archipelagic state and were “subject to its sovereign rights”. They “also wondered if the concept of internal waters could be included” in this principle. They wanted to remove any reference to aircraft. And they wanted to delete the fourth principle altogether, since, they argued, the question of prior notification was already covered by the use of the term “innocent passage” in the third principle. Because there was no time left in this session the four delegations agreed to meet again at some later date. The Fijians wanted to wait until the start of the summer session, but the Indonesians and Filipinos wanted to hold the meeting much earlier so that the four governments would have time to present their principles to other governments before that session. The Filipinos also asked that the meeting be held in Manila because, so they said, they hoped the presence of representatives of the other three governments would serve to moderate the hardline stand being taken by their government. In the end it was agreed that they would meet in Manila at the end of May.56

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THE AFTERMATH OF THE SOVIET DÉMARCHE In the weeks after Djalal’s statement the Indonesian government continued to show its resolve over the Malacca Strait. On 4 April Admiral Sudomo said that foreign warships would be allowed to pass through the strait but only if they first notified Indonesia and Malaysia.57 Two days later Admiral Subono demanded that submarines navigate on the surface during transit.58 Then, on 7 April, the chairman of the US Joint Chiefs of Staff, Admiral Thomas Moorer, declared in response to pronouncements such as these that “We feel we should have, and must have freedom to go through, under and over the Malacca Straits”.59 Though he was not speaking on behalf of the Nixon administration (and though he did not mention that because of its shallow waters submerged transit was hardly practical in the Malacca Strait), his words carried a great deal of weight. A few days later Sudomo expanded on his earlier declaration: the Indonesian military would attack any submarines that tried to pass through Indonesian waters without first obtaining permission.60 As if to show that the government did exercise some control over the passage of foreign warships, Adam Malik told reporters that during the Indo-Pakistani war the US Seventh Fleet had given notification that it would be passing through the Malacca Strait.61 According to a US source, the US government had notified the Indonesians of the passage of the fleet on its way to the Indian Ocean but only five hours after it had passed through the strait.62 At this point, however, such details mattered little: Indonesia demanded notification and even the mightiest naval power had, so it seemed, complied. At some point during these pronouncements the Indonesian government formally reminded the US that all warships had to notify the government before passing through Indonesian waters. That notification had to be in writing and it had to be submitted to the Department of Defence as well as to naval officials. The government apparently made similar demands on the other Western maritime states. All the Western governments took the view that because it was indisputably an international waterway they would not inform Indonesia about the intended passage of any of their warships through the Malacca Strait. They dealt with the question of notification through the waterways within the archipelago in slightly different ways. The Australians had already begun giving the Indonesians written notification. The New Zealanders had a policy of providing notification orally but had no objection to giving the Indonesians general information about an intended passage on an unsigned, unheaded piece of paper as well. The UK government decided in the circumstances that it would provide written notification (though in what form is unclear). As for the Americans they refused to provide written notification in any form. They would continue to provide oral notification. That notification took the following form carefully designed to avoid, so they hoped, the slightest suggestion of US recognition of Indonesia’s archipelagic claim: “USS Nixon will transit Indon

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claimed waters via Lombok Strait on Monday 30 Feb. CPA Indon territory 2 miles Palau Bali.”63 The only concession the US made to Indonesian demands was to inform the Department of Defence as well as naval authorities. This, it appears, was enough to satisfy the Indonesians. Because the department suspected that its phones were being tapped the Americans conveyed this information in face-to-face meetings rather than by telephone. In the midst of the furor over the Malacca Strait in April Soviet diplomats had urged the US and UK governments to join the Soviet Union and publicly oppose the Indonesian-Malaysian stand on the Malacca Strait. Both governments fundamentally shared the Soviet view on the status of the strait but the question was whether it would be wise to risk angering the Indonesians and Malaysians. The British deftly resolved this question by simply informing the Soviets that the UK had already presented all three coastal states with a bout de papier restating the UK’s position. Within the US government there was much more debate. Stevenson apparently wanted the US to follow the Soviet example but he was strenuously opposed by Theodore Heavner, the desk officer for Indonesia, Malaysia, and Singapore in the State Department.64 Heavner believed that an American démarche would serve no purpose, since the Indonesian and Malaysian governments were already fully aware of the US position. Such a diplomatic move would only anger the Indonesians and harden their position. He warned that it would “jeopardize our arrangements with the GOI for Seventh Fleet transit of the Indonesian archipelago”. In addition, he believed that any public criticism of the Indonesian-Malaysian position would force the Singaporeans to fall in behind their neighbours. In the end Heavner’s view prevailed. The US would continue to put forward its view at the Seabed Committee and in informal meetings but not make a public declaration of its opposition to the Indonesian-Malaysian position on the Malacca Strait. By late May much of the heat generated by the Soviet démarche had dissipated. All the parties to the dispute had made their positions clear in the lead-up to the conference. Now it would be up to the conference to settle matters. Any further provocation would only make that more difficult for all sides. Meanwhile, it was time for all the governments with a stake in this issue to review and consolidate their positions.

THE MANILA MEETING As planned, delegations from Indonesia, Fiji, and the Philippines met in Manila at the end of May to discuss the archipelagic-state principles that they and the Mauritian delegation had tentatively agreed to in March. The Filipinos, who had initially proposed this meeting, were the most dissatisfied with the original document but as an account written a few years later by Hasjim Djalal, who was

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a member of the Indonesian delegation, makes clear all three delegations wanted at least some changes.65 One of the most important questions was whether the principles should deal with aircraft as well as ships. Hoping to avoid the “security problems” caused by foreign military aircraft, the Filipinos and the Indonesians wanted to delete any mention of aircraft. Both argued that the question of overflight was a matter for the law of the air, not the law of the sea. In any case, so the Indonesians argued, there was no need to recognize a right of fly over archipelagic waters when existing international law provided no such right in relation to either territorial seas or internal waters. Moreover, the Indonesians believed that the majority of developing states in the Seabed Committee would not object to the absence of any mention of overflight, which they regarded as primarily a concern of the major military powers. In contrast, the Fijians argued that if the archipelagic states were not prepared to recognize the very real interests of big powers those powers would not be willing to accept the archipelagic concept. In the end, however, they acknowledged the security fears held by the Indonesians and Filipinos and agreed to remove any reference to aircraft. The Filipinos also wanted to remove the definition of an archipelagic state that had been included in the original draft. “An archipelago is an archipelago,” they argued. There was no need to be any more specific. The Indonesians and Fijians, however, insisted that there be a definition, even if a very broad one. The one the delegations had drafted in March declared that the state had to “form an intrinsic geographical, economic, and political entity” and “historically may have been regarded as such”. A couple of aspects of this definition proved to be contentious but how much they were discussed in Manila is unclear from Djalal’s account. In the end the delegations left the definition exactly as they had drafted it in March. None of the delegations objected to the idea expressed in the original version that an archipelagic state had the right to “draw straight baselines connecting the outermost points of the outermost islands and drying reefs of the archipelago”. The Filipinos, however, objected to the method of delimiting the territorial sea contained in that version, namely, that the width of the territorial sea should be measured from the straight baselines. The Indonesian and Fijian governments of course used this method to delimit their territorial seas: they took their straight baselines as their starting point and then measured their territorial seas out from those baselines. As a result their territorial seas had a uniform width except in those areas where their territorial seas overlapped those of a neighboring state. In contrast, the width of the Philippines’ territorial sea varied enormously from place to place, since Philippine law had already declared that the treaty limits marked the outer edge of the territorial sea. In order to overcome this problem three delegations agreed that the first principle should simply state that an archipelagic state had the right to draw straight baselines “from which the extent of the

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territorial sea…is or may be determined”. This allowed an archipelagic state to determine its territorial sea any way it wanted. The March version of the principles had dealt with the question of the status of the waters inside the straight baselines by stating, very ambiguously, that these waters, the resources in and under them, and the airspace above them “fully belong to the sovereign rights of the archipelagic State”. The delegations debated at great length whether the waters inside the baselines had the status of territorial seas, as the Fijians argued, or internal waters, as the Indonesians and particularly the Filipinos insisted. In the end they solved this problem by abandoning labels, since, the Indonesians and Fijians pointed out, they only caused disputes. The delegations agreed that these waters, resources, and airspace “are subject to the sovereignty” of the archipelagic state. What mattered was sovereignty. But that still left the most difficult issue of all, the passage of foreign vessels. The original version of the third principle had stated that “innocent passage…shall be allowed in accordance with national legislation and with the existing rules of international law”. The main feature of this wording was that it gave equal weight to national legislation and international law. The Fijians wanted to keep this wording. The Filipinos wanted to do away with any mention of international law. The Indonesians sympathized with the Philippine view but believed that deleting all reference to international law would make it harder to gain recognition of the archipelagic concept. They also noted that not all archipelagic states had laws regulating innocent passage. The delegations eventually agreed that “innocent passage…shall be allowed in accordance with national legislation, taking into account the existing rules of international law”. Whether archipelagic states actually observed those rules would be entirely up to them. The delegations retained the declaration in the original version that “passage shall be through sealanes…as may be designated for that purpose by the archipelagic State”. They strongly disagreed, however, on whether passage of “State vessels” through those sea lanes should be subject to prior notification. The Fijians, ever mindful of the need to win acceptance from the maritime powers, wanted to remove this provision, but the Indonesians and Filipinos resisted that suggestion. In the end, the delegations neatly glossed over their differences by deleting any mention of prior notification or authorization. The Indonesians and Filipinos were willing to do this because of the priority that the revised principles now gave to national legislation. Whether states required prior notification or authorization or allowed foreign warships to pass through their waters without either of these requirements would again be for them to decide. The result of these negotiations was three principles. The first defined an archipelagic state and described the method of drawing of straight baselines and determining the territorial sea. The second asserted the state’s sovereignty over the waters, resources, and airspace inside the baselines. The final one provided for innocent passage on terms largely determined by the states themselves and also gave

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archipelagic states the right to designate sea lanes. Taken together, they represented the lowest common denominator of the three states’ positions. That common denominator was very low indeed. Nevertheless, they had, so they believed, reached agreement. This gave them a strength that they had previously lacked. Other developing states would find it easier to support them, while the maritime powers would find it harder to resist them. Once the three governments had approved the agreement reached in Manila their embassies circulated the three principles to other governments. The Indonesian Embassy in London informed the British government of the principles in a diplomatic note delivered in July. The Indonesian government would, the embassy wrote, “highly treasure if Her Majesty’s Government would render her valuable support to those principles the three Governments have arrived at”.66

THE INTER-AGENCY TASK FORCE ON THE LAW OF THE SEA While the Indonesians, Filipinos, and Fijians were hammering out their three principles in Manila, the US government was in the midst of a detailed review of the stand it would take during upcoming meetings of the Seabed Committee and then at the conference. The body charged with the task of proposing and evaluating options on the major questions that confronted the government was the Inter-Agency Task Force on the Law of the Sea, which was chaired by the leader of the US delegation to the Seabed Committee, John Stevenson. By the time it submitted its report to Henry Kissinger on 20 June it had concluded that the US would have to try to reach some sort of accommodation with at least some of those states that had applied or planned to apply the “archipelago principle”.67 It knew that Indonesia, the Philippines, and Fiji would not abandon the principle, had the impression that there was “broad developing country sympathy” for the principle, was aware that Australia was sympathetic to their claims provided that there were adequate provisions for transit, and had heard that officials from the three states had recently met in Manila and begun to work out a common stand. It also believed that unless there was a resolution of this question in the near future more and more states would make archipelagic claims. If that happened, the US might find itself having to make a hard choice between acquiescing to or confronting those claims while still having achieved no resolution to the problem posed by Indonesia and the Philippines. One of the task force’s key objectives was to find a way of limiting the application of the archipelagic concept. One way to do this was to devise a precise formula to determine when a number of islands could be regarded as forming an archipelago. The State Department’s geographer, Robert Hodgson, and the director of the Law of the Sea Institute, Lewis Alexander, had recently proposed a number

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of criteria that a group of islands would have to meet before it could be regarded as an archipelago. One of these criteria was that no island on the outer edge of the group could be more than 40 miles from another island on the outer edge, while another had the effect of requiring the islands in the group to form a compact cluster rather than, say, a big ring enclosing a large expanse of sea.68 The task force could have pursued this approach further, devising what they believed were acceptable criteria and then finding out which islands met those criteria. Well aware as they were that the Indonesians and Filipinos regarded formulas as irrelevant, however, they instead took an explicitly political approach to the problem they faced. They took as their starting point the assumption that “the [archipelagic] principle would be defined so as to permit us to deal with the application of the concept to the following archipelagos: Canadian Arctic, Fiji, Greece, Indonesia, Japan, Maldive Islands, Mauritius, the Philippines, and possibly the United States in some areas”. Having made that decision, they then looked for criteria that would make it possible to treat those particular collections of islands as a whole but prevent other collections of islands such as those making up several Pacific island states from being treated in the same way. In other words, the cases would determine the criteria rather than the other way around. The task force was still studying various criteria at the time it submitted its report. Having made this conceptual leap, the task force put forward two options for how the US should deal with the archipelagic issue: Option 1: The US should promote a solution that would give states exclusive jurisdiction over the resources in archipelagic waters while preserving “complete freedom of navigation and overflight in the archipelago”. The task force argued that this option would satisfy the resource interests of “archipelago States” but noted that it would “not meet the political or security interests” of those states. Moreover, the US would find it hard to argue for strict limits on the application of the archipelagic concept, since it would not be able to say that it restricted freedom of navigation and overflight in any way. Option 1 was also inconsistent with the US government’s opposition to proposals for economic zones. The tone of the report suggests that the task force did not consider this option a viable position for the US to adopt. Option 2: The US should begin private negotiations with Indonesia and other archipelagic states on a concept that would “in essence” mean that archipelagic waters would be regarded as territorial sea or internal waters. There would be two conditions. The first was that there had to be a precise definition of the areas that qualified as archipelagic waters “to prevent abusive application of the concept”. The second was that the agreement would provide “the same rights of free transit through and over archipelagos as we are seeking for straits, namely the same freedom of navigation and

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overflight, for the purpose of transit, as on the high seas, subject to a coastal State right to designate corridors suitable for transit, and agreed safety and pollution measures as in straits”. According to the task force, the US had to work towards a solution along the lines of option 2 if it wanted to ensure that freedom to transit archipelagos was enshrined in international law rather than being subject to the approval of particular governments. In its view the archipelagic claimants were unlikely to accept any arrangement that gave them less than option 2 did. The task force acknowledged that a regime of the type sketched out in option 2 would prevent the US from conducting maneuvers, anti-submarine operations, or “other operations” inside an archipelago but noted that it had long avoided the risk of doing this in Indonesia. Although it did not state this explicitly, it implied that option 2 was very much better than option 1. Central to option 2 was the linkage between the archipelagic and straits issues. This was partly because, as the task force saw it, the US had to have the same freedom of navigation and overflight through archipelagos as in “international straits”. But it was also because it hoped that Indonesia might moderate its position on the Malacca Strait if the US moderated its position on archipelagos. Of course, the Indonesians might not change their position on the strait but, the task force reasoned, there was little possibility that they would do so without a significant shift on the part of the US. At this point the two issues became inextricably linked in US thinking on the law of the sea. *** At the same time as the task force submitted the report to Kissinger it also circulated copies to the agencies that had a direct interest in the outcome of the upcoming conference. While these agencies were considering their responses the Law of the Sea Institute held a conference titled “Needs and Interests of Developing Countries” at the University of Rhode Island at the end of June. Recently Mochtar and Djalal had decided that they and their colleagues should take every opportunity they could to present Indonesia’s point of view at academic conferences such as this one that dealt with the law of the sea. “Lots of members of the US and other delegations were academics,” Djalal later explained, “so we needed to interact with them, to explain our position in a rational way so that they could in turn explain it to their governments.”69 Academic conferences also allowed those engaged in negotiations in the Seabed Committee to speak more informally than they did during the committee’s meetings. Attended by a stellar collection of officials and academics from around the world,70 the Rhode Island conference presented Mochtar and Djalal with an especially good opportunity to promote the Indonesian perspective, and both took full advantage of the occasion. After

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emphasizing that the concept of an archipelago was as much a political concept as a geographical one, Mochtar appealed to the lawyers in the audience to think not like a craftsman—“the cobbler, a plumber or a carpenter”—who worked within the confines of existing international law but as a “master builder or architect with a mission to build a new and better world”.71 Then, in informal remarks delivered immediately after his formal presentation, he gave a passionate account of how the Djuanda cabinet came to make the declaration of December 1957. “[W]e were only trying to keep ourselves from falling apart,” he said. Picking up on the central theme of Djalal’s statement to the Seabed Committee in March, he told his listeners that “we” continued to be “bothered by rebellions”. He referred specifically to “a remnant of the Communist rebellion” that was still active in Borneo. Precisely because of such threats the Indonesian military was constantly on the alert for submarines that might be aiding the rebels. This was why the government asked that it be notified before foreign warships transited Indonesian waters. “We would like,” he added, referring to the capability military aircraft had to drop depth charges, “to spare our friends who may want to pass submerged…from measures we might take against those who are not friends, who try to hide submerged…. If [a submarine] does not say he is around, and we drop them on the wrong fellow, that would be too bad!”72 Immediately after this thinly veiled threat he assured his audience that the idea that Indonesia was “grabbing the sea or trying to interfere with navigation is simply not true. We do not have the means; we don’t even have the intention.” It was a bravado performance. For his part, Djalal, speaking at the end of the conference, expressed his astonishment at the lack of attention the participants had given to the problem of security.73 With security very much in mind he emphasized that while Indonesia and other coastal states recognized the need of foreign ships to pass through the archipelago he believed that that need was fully satisfied by the principle of innocent passage. The implication was that Indonesia would never accept any regime that failed to take its security interests into account. Whatever else Mochtar and Djalal may have achieved they left those attending the conference with a greater appreciation of the depth of the Indonesians’ commitment to the principles in Law No.4 and Regulation No.8. *** Back in Washington the various agencies that had received the task force’s report submitted their responses over the next week or so. The State Department expressed strong support for option 2. Unless there was a negotiated agreement, it warned, “the most we could reasonably hope for would be that archipelago States would recognize a right of innocent passage”. It was particularly anxious that the US reach agreement with Indonesia, “by far the most important archipelago State”, noting that in the view of the East Asian Bureau the archipelago and straits issues were “the most serious potential problem in our current relations with

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Indonesia”.74 In contrast, the Joint Chiefs of Staff argued that option 2 should not be considered until there was a clearer definition of the archipelago concept, “the real interests of archipelago states were ascertained”, and there was a careful assessment of costs and benefits of trading off US support of an archipelago concept in exchange for transit rights.75 And, while not rejecting option 2 outright, the secretary of the Department of Defense, Melvin Laird, warned against making any concessions when “Indonesia is not yet ready to agree to no-notice submerged transit through any of its straits”.76 Largely reflecting the caution urged by Defense, President Nixon instructed the US delegation to the summer session of the Seabed Committee to maintain a position of “non-recognition, bearing in mind the need to define more clearly the nature of such claims” but authorized the delegation “without committing the United States to undertake private exploratory discussions with Indonesia and other archipelago states indicating U.S. willingness to cooperate with such states in considering possible formulations…of archipelagic claims that might satisfactorily accommodate US marine resource and navigation interests”.77 On the closely related matter of straits the president reaffirmed the importance of “free transit through and over international straits” but instructed the delegation to make what the administration regarded as a concession to the straits states. It was to propose that the treaty provide that state aircraft exercising the freedom of transit set out in the US articles would “normally” conform to the same international standards that applied to civil aircraft and “at all times operate with due regard for the safety of navigation of civil aircraft”. The presidential instructions acknowledged that these proposals might not satisfy other delegations and authorized the US delegation to propose a formulation in the task force’s report that imposed slightly greater restrictions on transiting aircraft.

THE SUMMER SESSION OF 1972 For the Indonesians the most important episode during the summer session in Geneva was a great battle over the list of agenda items for the upcoming conference.78 Despite the willingness of the US delegation to agree to limitations on free transit of straits the Group of 77 continued to resist any reference to “free transit” in the agenda, while the US insisted that it had to be included. Eventually the chairman of the Seabed Committee, H.S. Amerasinghe of Sri Lanka, suggested that “free transit” be replaced by “right of transit”. That meant that the conference would discuss some sort of regime that went beyond innocent passage but left open what form that regime might take. Amerasinghe also proposed that the list contain a statement that it did “not necessarily” include all the subjects that might be discussed at the conference. The US delegation was prepared to go along with Amerasinghe’s proposals but because the Department of Defense “steadfastly opposed” any change the matter had to be referred to Nixon. When, several days

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later, he gave his approval the committee was at last able to finalize the agenda for the conference. As at previous sessions there was no opposition to including the item titled “Archipelagos”. It was one of a staggering total of twenty-five items and eighty-two subitems. At this point the plan was that the committee should hold two more sessions before the conference. With the finalization of the agenda the focus of discussion would be much more squarely on the content of specific proposals. Among these, so the Indonesians planned, would be the three principles they had worked out with Fiji and the Philippines.

NEIGHBOURS Shortly after the summer session the Indonesian government moved to finalize a seabed boundary with Australia in the Timor Sea. For some time the Indonesians, determined as they were to delimit Indonesia’s maritime boundaries as quickly as possible, had been pressing the Australian government to resume discussions on this boundary. Both Mochtar and Djalal had indicated that while Indonesia maintained its view that the boundary should follow the median line between Indonesia’s islands and the Australian continent Indonesia might be prepared to agree to a line somewhere between that line and the line that Australia insisted on, namely, the axis of the Timor Trough.79 For their part, the Australians were giving nothing away in their discussions with Indonesian officials. Within the Australian government, however, there were voices urging compromise. Australia’s ambassador to Indonesia feared that however valid the Australian position might be in international law most Indonesians would regard a boundary lying so much closer to Indonesia’s islands than to the Australian continent as patently unfair. He was extremely worried that the issue might damage the good relationship Australia had been building up with Indonesia.80 Australian officials also saw the boundary question in the context of the upcoming law of the sea conference. By this time the Australian government was convinced that a convention would have to make some sort of accommodation for archipelagic states but wanted to make sure that it included adequate provisions for the transit of foreign ships and aircraft. If Australia were prepared to compromise with Indonesia on this issue, then, so various officials hoped, the Indonesians might be more flexible when it came to negotiating those provisions.81 The Australian government appears to have accepted this view but did not want to signal any change in its position before negotiations actually began. During September the two governments agreed on an agenda and finalized their negotiating teams in preparation for a meeting in Jakarta in early October. One of Indonesia’s most experienced diplomats, Idrus Nasir Djajadiningrat, was appointed head of the Indonesian delegation, while Mochtar took the position of deputy leader.82 The Australian side appears to have had instructions to begin by restating Australia’s position that the boundary should follow the trough but then to be

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prepared to negotiate a compromise that gave the Indonesians some of what they wanted but if at all possible did not include giving up areas which were already under Australian jurisdiction according to Australian law. Presumably because of the political sensitivities enveloping boundaries in the Timor Sea the National Archives of Australia has expunged all details on the actual conduct of the negotiations in Jakarta. The file released by the archives merely reports that on the Indonesian side “the carriage of the substantive negotiations was left in the competent hands” of Mochtar, that the negotiations “were conducted…in an atmosphere of mutual respect”, that the leaders of the two delegations initialled an agreement on 6 October, and that the agreement was signed by the Indonesian mines minister and the Australian foreign minister three days later.83 But the boundary the two sides negotiated indicates that the Indonesians compromised more than the Australians. As can be seen in figure 8.2, the boundary was generally closer to the axis of the trough than to the median line.84 Prescott estimates that “Australia gained about 80 percent of the area in dispute”.85 As Robert King points out, the Indonesians might have insisted on a boundary much closer to the median line, if not the median line itself. They could at the very least have insisted on waiting to see how the law of the sea conference dealt with the question of seabed boundaries or waiting for geological confirmation of their view that the trough was merely an indentation in a shared continental shelf. King attributes the Indonesians’ willingness to concede so much so quickly to their desire to reciprocate for the financial and other aid Australia had given Indonesia.86 In fact, this concession, like the concessions Indonesia had made to Malaysia, was part of the Indonesians’ strategy of gaining indirect recognition of Law No.4. The mere fact that the boundary lay outside the Indonesian archipelago reinforced the notion that everything within that archipelago—even the depths of the Banda Sea—belonged to Indonesia. Shortly after negotiating this boundary with Australia the Indonesians encountered a major problem during negotiations with another neighbour, Malaysia. At recent sessions of the Seabed Committee the Indonesians and Malaysians had been comrades in arms on the question of straits. Nothing would budge them from the position that the waters within the Malacca Strait that fell within their 12-mile territorial seas were subject to the innocent passage regime. The problem arose in December during a meeting of the General Border Committee, which the two governments had established in April as a venue where they could discuss measures “to eliminate the Communist threat” along their common border as well as “other matters pertaining to security in the Border Regions”87 including “combat[ing] smuggling and illegal sea traffic”.88 During this meeting the discussion turned to the question of the conditions that might apply to Malaysian forces operating in the waters around Indonesia’s islands in the South China Sea. As can be seen from figure 7.2, a large area of Indonesia’s waters lay directly between East and West Malaysia. According to a British source, “the

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Indonesians had apparently offered the Malaysians a ‘corridor’” through those waters.89 In keeping with the principles adopted in Manila, they had also, so other sources suggest, told the Malaysians that vessels making use of such a corridor would be subject to the innocent passage regime.90 This was entirely consistent with the position that Malaysia had joined Indonesia in defending in the case of foreign ships transiting their territorial seas in the Malacca Strait. Nevertheless, the Malaysians were not satisfied with the Indonesian offer. They were, according to the British source, extremely concerned about the implications of Indonesia’s claim not only for the activities of the Malaysian navy but also for air services between West and East Malaysia. And they were determined to raise this issue at the upcoming conference. Unless Indonesia’s archipelagic campaigners could find a way of accommodating Malaysia they risked alienating the neighbour whose support they most needed.

AND THE SOVIET UNION Just when Malaysia had apparently made Indonesia’s archipelagic campaign even more difficult than it already was, the Soviet Union was eagerly trying to rectify the damage its démarche had done to relations with Indonesia earlier in the year. In the middle of December the Soviet ambassador to Indonesia used the occasion

Figure 8.2 Continental shelf boundary between Indonesia and Australia in the Timor Sea according to the agreement of October 1972

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of the fiftieth anniversary of the formation of the USSR to remind Indonesians that the Soviet Union had been the first state to recognize Indonesia’s archipelagic declaration. He also expressed Soviet support for Indonesia’s claim to a 12-mile territorial sea. Both the Indonesian press and the government took the liberty of interpreting the statement as meaning that the Soviet Union had done a complete about-face on the position it had taken on the Malacca Strait earlier in the year. “Thank God, at last the Soviet Union understands our claim,” Malik reportedly said. The Soviet Embassy immediately issued a statement that the Soviet Union maintained its position that because the Malacca Strait was widely recognized as an international strait it was not subject to the innocent passage regime. Studiously ignoring this clarification, Malik told the press that the Soviet warships had to notify either Indonesia or Malaysia before transiting the strait, “because Moscow has agreed to Indonesia’s claim of a 12-mile territorial limit”.91 Having bungled its professions of good will, the Soviet Embassy fell silent on this issue. *** If nothing else, the ambassador’s statement indicated that the Soviet Union wanted to reach some sort of accommodation with Indonesia. There were signs that the other maritime powers wanted to do the same. When the UK government finally responded to Indonesia’s request that it support the three principles the archipelagic states had worked out in Manila, its formal reply curtly reminded Indonesia of its rejection of Indonesia’s 1957 declaration and Law No.4 but a British official told a senior officer in the Indonesian Embassy that “We understood the Indonesian views on the question and thought that some compromise would be reached”.92 The US government made no such overtures but at the very least it was willing to include archipelagos on the agenda of the upcoming conference. The biggest stumbling block for all the maritime powers, as it now was for Malaysia as well, was the question of transit. Unless that could be resolved there was no prospect of achieving international recognition of the archipelagic concept in a broadly supported convention.

CHAPTER 9

The Seabed Committee 1973 Committee Seabed The 1973

In the lead-up to the spring session of the Seabed Committee the Indonesian government enacted its continental shelf declaration as Law No.1 of 1973. The most significant aspect of this law for Indonesia’s archipelagic campaign was that it restated the principle set out in the declaration that the law only applied beyond the territorial seas delimited by Law No.4 of 1960. In this way the government reinforced yet again the notion that everything inside the limits of Indonesia’s territorial seas belonged to Indonesia. But it still was a very long way from gaining recognition of the archipelagic concept in an international convention. The next step in reaching that goal was to find out how much support there was within the Seabed Committee for the three principles.

THE SPRING SESSION OF 1973 During the first few days of the spring session, which began in New York on 5 March, Sub-Committee II agreed to hold general debate in open meetings of the sub-committee and a parallel debate in closed meetings of a working group of the whole. The purpose of the working group was to consider the agenda agreed on at the previous session but because the agenda included so many different topics the working group decided to begin by discussing the topics regarded as the most important. Here the archipelagic states scored a small but important victory. Although “Archipelagos” was item 16 on the agenda, they were able to have it included along with the territorial sea, contiguous zone, straits, the continental shelf, the exclusive economic zone (as the economic zone was now called to reflect the idea that rights to its resources would lie solely with the coastal state), and two other items as one of the topics the working group would examine.1 At the very least there was now no danger that the question of archipelagos would be regarded as a minor issue. Although we have no record of the discussion in the working group, it appears that it in fact gave a great deal of attention to this question, for it certainly featured prominently in the closely related debate in the open meetings. 199

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Sometime in the early part of the session the four archipelagic states made two changes to the wording of the three principles agreed on in Manila. The first concerned the relevance of history to the definition of an archipelagic state. The Manila text required that the islands making up an archipelagic state “historically may have been regarded” as forming an intrinsic entity. The Indonesian and Philippine delegations were not satisfied with this wording, for as far as they were concerned the islands making up the states they represented had been regarded as forming such an entity. At their request the relevant phrase was changed to “historically have or may have been regarded” as forming an intrinsic entity.2 The second change concerned the place of international law in regulating the innocent passage of foreign ships. The four delegations agreed to change “taking into account the existing rules of international law” to “having regard to the existing rules of international law”, a change that presumably implied slightly more respect for international law but left the substance of the text exactly as it was. Having made these changes the four states submitted the three principles to the sub-committee on 14 March as document A/AC.138/SC.II/L.15 (“L.15”).3 In introducing the three principles to the sub-committee the next day Arturo Tolentino emphasized the “essential element of unity” in the definition of an archipelagic state. He rejected any suggestion of imposing “some arbitrary limitation” on the length of straight baselines, for “otherwise, the application of the archipelagic principle would be meaningless”.4 Likewise Satya Nandan, who by this time was leading Fiji’s delegation, spoke of the absurdity of “arbitrary” limitations, but unlike Tolentino he indicated that the archipelagic states would be open to the possibility of criteria based on the actual situation of the states in question. He also dealt with the question of the status of the waters inside the straight baselines. Since these waters would be subject to the sovereignty of the state in the same way its land territory was but also subject to the innocent passage regime, it would, he said, be appropriate to adopt a new term to refer to them by a new name, “archipelagic waters”. Whereas McLoughlin and Mochtar had used that term to encompass both the waters inside the straight baselines and the territorial sea extending beyond those baselines, Nandan now used it to refer only to the waters inside the baselines. The three principles themselves made no mention of “archipelagic waters”. Indeed, they avoided referring to the waters inside the baselines by any term, presumably because the Filipinos in particular continued to insist that they were internal waters. Thus, while being entirely consistent with the three principles, Nandan was in fact beginning to go slightly beyond them during the course of his statement. Closely tied to the question of the status of the waters inside the baselines was the question of passage. Nandan wholeheartedly agreed with his Indonesian and Philippine colleagues that foreign ships should be subject to the innocent passage regime. The rights enjoyed by archipelagic states would, he said, be meaningless if armed ships could go anywhere and do whatever they wanted. This did not mean that the archipelagic states were trying to challenge the

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right of foreign ships to pass through archipelagic waters. The archipelagic states were only asking for “the right…to designate the paths that might be taken…and the right to control such passage so that the archipelagic State could properly exercise its sovereign rights”.5 This position was completely consistent with the one being promoted by the Indonesians and Filipinos. The initial reaction was extremely encouraging. The New Zealand and Australian representatives both said that the conference should give careful consideration to the interests of the archipelagic states, though the Australian representative was careful to add that there would also have to be proper consideration of the interests of other states. Shortly after Djalal made a brief statement thanking them for their consideration the Canadian representative went so far as to congratulate the sponsors of L.15, the French representative added that his government would also give the text careful consideration, and the Japanese representative, while highlighting the problem of determining baselines, announced that Japan would do the same. Along the way Greece, Peru, Malta, Nigeria, El Salvador, and India all expressed their support for L.15.6 All this boded well for future deliberations. In other venues (whether in the working group or in private discussions is unclear) some African states had misgivings about one aspect of the proposal. They suggested that it would be unfair for an archipelagic state not only to have sovereignty over the waters inside its straight baselines but also to claim an economic zone extending out from those baselines. According to Nandan, however, “we” (apparently the Fijian delegation) explained to them that an economic zone measured from each island individually would cover almost as great an area as a zone measured from the system of straight baselines. The only effect of measuring the economic zone from those baselines, he told them, was “to give us a belt of economic zone free of indentations outside the baselines rather than…undulating intersecting ‘scallops’”. He thought this explanation, so he reported, had “managed to allay their apprehensions”.7 At least for the moment this potential challenge to the archipelagic states had apparently been put to rest. During the days following the debate on L.15 the Indonesian delegation’s attention was focussed not on the archipelagic question but the question of innocent passage. On 27 March Indonesia joined with seven other states—Cyprus, Greece, Malaysia, Morocco, the Philippines, Spain, and Yemen—to submit “draft articles on navigation through the territorial sea including straits used for international navigation”. The preamble to the 8-power articles, A/AC.138/SC.II/ L.18, explained that navigation through the territorial sea and navigation through straits used for international navigation “should be treated as an entity, since the straits in question are or form part of territorial seas”. This of course was the position Indonesia and Malaysia had been taking in relation to the Malacca Strait. L.18 followed the Territorial Sea Convention in proclaiming both that foreign ships had the right of innocent passage through the territorial sea and that “Passage

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is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State”. It also followed the convention in requiring submarines to navigate on the surface. But it differed from the convention in two fundamental ways. First, of course, it was based on the assumption that the territorial sea was 12 miles wide. This meant that in practice many straits including the Malacca Strait that had once been part of the high seas would, according to L.18, be subject to the innocent passage regime. It repeated the injunction in the convention that there must not be any suspension of innocent passage of foreign ships through straits used for international navigation which formed part of the territorial sea but otherwise treated straits like any other part of the territorial sea. Second, it included many provisions intended to protect coastal states. One of these gave states the power to enact regulations relating to many different aspects of navigation of the territorial sea such as maritime safety, the establishment of sea lanes and traffic separation schemes, the prevention of pollution, and the passage of “ships with special characteristics”. Another listed various activities foreign ships would not be allowed to perform while exercising innocent passage; these included engaging in espionage, disseminating propaganda, and “embarking or disembarking troops, crew members, frogmen or any other person or device without the authorization of the coastal State”. Yet another provision, intended to correct what the sponsors regarded as a major deficiency in the Territorial Sea Convention, gave coastal states the right to require foreign warships to provide notification or obtain authorization before undertaking passage. All in all, L.18 shifted the balance of interests firmly in the direction of coastal states. This proposal would have enormous ramifications for navigation through the world’s most important straits if it were ever incorporated into a convention. But it would have even greater consequences if it were ever incorporated in conjunction with the third principle in L.15. This was because according to the third principle foreign ships would be subject to innocent passage while they were navigating along a sea lane. Thus, assuming that the concept of innocent passage carried the same meaning in different parts of the convention, foreign ships navigating through an archipelago would be subject to the provisions of L.18. This meant that foreign warships could be required to give notification or obtain authorization before transiting an archipelago. Even more seriously from the point of view of the maritime powers, it also meant that foreign submarines would be required to navigate on the surface while undertaking such transit, thus vastly diminishing the strategic advantage enjoyed by submarines. By cosponsoring L.18 as well as L.15 the Indonesians were challenging one of the bases of the world order established by the superpowers. Debate on L.18 began on 2 April when Tolentino introduced the draft articles on behalf of the eight states. Repeating many of the points made in the preamble, he explained that the purpose of the articles was to “harmonize” freedom of navigation on the high seas and the territorial sovereignty of coastal states.8 His

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statement did nothing to mollify the superpowers. The Soviet representative told the sub-committee that the convention would have to recognize the interests of coastal states, including their desire to ensure their security, but attacked L.18 for trying to extend to straits used for international navigation the principle of innocent passage that applied to the territorial sea. The Soviet Union, he said, “cannot accept that approach”.9 Similarly, the US representative, John Norton Moore, expressing how “deeply disappointed” the US was with the proposals, argued that L.18 “confused the issue of passage in the territorial sea in areas other than international straits with the very different issue of transit through and over international straits”. The proposals were, he charged, “unbalanced and denied the essential navigational freedoms of the international community”.10 The Americans were, so his statement implied, all the more disappointed because the US had been prepared to make what they regarded as important concessions to straits states in the interests of ensuring safety of navigation and protection of the marine environment. Later in the same meeting Satya Nandan made an extraordinary intervention. The Fijians and Mauritians had not been aware that their archipelagic colleagues, Indonesia and the Philippines, had been busy discussing innocent passage articles with the other sponsors of what became L.18. The sudden appearance of L.18 alarmed Nandan. Like the Indonesians and Filipinos he championed the idea—the third principle in L.15—that ships transiting a sea lane established by an archipelagic state should be subject to innocent passage. He had, however, a very different conception of what innocent passage might mean. At the very least it should not impose such great restrictions on foreign warships and submarines. He therefore decided to disassociate Fiji from the sponsors of L.18.11 After appealing to delegates to think of the interests of others as well as of themselves, he made a statement on behalf of Fiji and Mauritius. The gist of his statement was that while Fiji and Mauritius would give careful consideration to L.18 they reserved the right to formulate their own set of articles concerning passage along sea lanes.12 The division between Fiji and Mauritius on the one hand and Indonesia and the Philippines on the other was now out in the open. The next day the British representative, Roger Jackling, entered the fray. Unlike Moore he attempted to strike a conciliatory tone when discussing L.18—the document had, he said, “been prepared with much care”—but his message was the same. If the width of the territorial sea was to be extended to 12 miles, he argued, there had to be special provisions for straits used for international navigation and those provisions had to ensure that both foreign ships and aircraft would have unimpeded passage. He ended with a few words on L.15. After commenting that any new convention “must take proper account of…the legitimate concerns of archipelagic States”, he expressed deep concern about the way L.15 defined an archipelago. There was, he said, a danger that over time the principles set out in that document “might come to justify claims of a sort never envisaged by their

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original advocates”. If the convention was to deal with the question of archipelagos, it would have to include “objective criteria”.13 Speaking two days later, on 4 April, Djalal did not refer to the question of archipelagos at all but instead mounted a withering response to Moore’s attack on L.18.14 It was, he said, regrettable that the US had been “deeply disappointed” by the draft. After all, its sponsors had merely presented it for consideration just as the US had in the case of its own proposal. But, he added, they could not accept the notion of “free transit” of straits, “since that would entail a loss of national sovereignty over the straits, which could then ultimately be assimilated to the status of high seas”. He dismissed Moore’s “accusation” that the sponsors were trying to deny “the essential navigation freedom of the international community”. If the truth be told, the only ships for which the notion of free transit had any importance were the warships and submarines of the maritime powers. For its part, Indonesia only wanted to defend its rights and security in its own waters. Unlike the maritime powers it had no desire to “go at will and without restriction” into the waters of distant countries. All it asked was that those powers try to understand Indonesia’s problems better. “I have watched to see if they would be prepared to see our own security interests safeguarded as well as their own, and I regret to say I have been waiting in vain.”15 At least, he added, the Soviet representative had acknowledged that coastal states had real security interests. The US had not even done that. The next day a member of the Malaysian delegation, L.C. Vohrah, reinforced Djalal’s response. Pursuing a theme that Djalal had employed in the spring 1972 session, he argued that while certain powers liked to see themselves as guardians of the international community “as if they were altruistic” their only real concern was their strategic interests. It was, he added, entirely unacceptable that the sovereignty states bordering straits enjoyed over their territorial seas should be diminished “simply because of the interests of certain states”.16 *** None of these deeply contentious matters were any closer to resolution when the spring session ended on 6 April. In one way, however, the session had been a great success for Indonesia and its archipelagic partners. Many delegations had stated for the first time that any future convention would have to take into account the interests of the archipelagic states. Particularly important were the statements by France and the UK because of their standing as leading maritime powers. The great question was whether it would be possible to craft an archipelagic regime that satisfied both the maritime powers and the archipelagic states themselves. The two major stumbling blocks were the question of definition and the general problem of passage. All the interested parties would have an opportunity to propose draft articles during the summer session scheduled to begin in Geneva in July. The plan was that this would be the final session of the committee before the conference.

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WAWASAN NUSANTARA While the Indonesian delegation had been doing battle in New York, the Indonesian government had been embedding the archipelagic concept back home. Wawasan Nusantara, the Archipelagic Outlook, had been part of the military’s ideology since its formulation in 1967 in an effort to give the army, navy, and air force a common vision. During 1972 and the early part of 1973, as it tried to mould Indonesian society into an integrated whole in which the population would focus on economic development rather than politics and class, ethnic, or regional interests, the government decided to place Wawasan Nusantara at the heart of national ideology. The ultimate step came on 23 March 1973 when the MPR incorporated Wawasan Nusantara into its guidelines for national policy for the next five years. The primary goal set out in the guidelines was “national development” and the outlook to achieve that goal was Wawasan Nusantara, which, so the guidelines proclaimed, included: 1. The realization of the Indonesian Archipelago [Kepulauan Nusantara] as one Political Unity, meaning: (a) That the whole National Territory with all its contents and resources shall form one Territorial Unity, container, sphere of life, and unity of norms of the whole of the Nation, as well as becoming the asset and property of the collective Nation…. 2. The realization of the Indonesian Archipelago as one Social and Cultural Unity…. 3. The realization of the Indonesian Archipelago as one Economic Unity…. 4. The realization of the Indonesian Archipelago as one Unity of Defence and Security….17 The guidelines did not define precisely what “the Indonesian Archipelago” meant in a territorial sense. That was taken as preordained by geography and history. But, descending to the realm of legislation, it was assumed to be the territory defined by Law No.4 of 1960. For Indonesia’s archipelagic campaigners the incorporation of Wawasan Nusantara into the national policy guidelines was important in two ways. First, it meant that they were fighting not merely for certain areas of the sea but also for the very shell within which an integrated Indonesia was striving for national development. Second, it entrenched the archipelagic concept even further in Indonesian law, since as a legal instrument the MPR’s approval of the guidelines “stands immediately below the constitution and is superior to all other legal instruments below it”.18 Now that Wawasan Nusantara was part of the national

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guidelines, Djalal wrote somewhat later, it “could no longer be removed or negotiated”.19 Whatever might happen at the upcoming conference Indonesia was, and always would be, an archipelagic state.

SINGAPORE Up to this point Indonesia had negotiated seabed boundaries with Malaysia, Thailand, and Australia and a territorial sea boundary with Malaysia. One of the boundaries the government had yet to negotiate was Indonesia’s territorial sea boundary with Singapore. Short though it would be, the Indonesians wanted to delimit this boundary as soon as possible, both because of their push to delimit Indonesia’s maritime boundaries with all its neighbours but also because of the jurisdictional confusion caused by the lack of a boundary in the Singapore Strait, where Indonesian authorities were trying to suppress the rampant smuggling that was taking place between Singapore and Indonesia. The greatest impediment to a boundary agreement had been the poor state of relations between the two countries. In 1968 the Singapore government, ignoring Suharto’s personal appeal to Lee Kuan Yew, had hanged two Indonesian marines who had set off a bomb in a bank building at the height of Confrontation.20 Despite the uproar that had occurred in Indonesia following the hangings relations had been gradually improving since then, due largely to the New Order’s determination to strengthen diplomatic and economic ties with Singapore.21 The tripartite agreement of November 1971 had been part of that process. But, Hasjim Djalal later recalled, “Singapore [still] refused to talk about the territorial sea, smuggling, and other issues of importance to us”. In 1972 General Sumitro was instrumental in having Djalal posted to the Indonesian Embassy in Singapore as the minister counselor, the position he held while representing Indonesia in the Seabed Committee at this time. Djalal’s mission was to find ways of improving relations between Indonesia and Singapore—particularly to bring about a rapprochement between Lee and Suharto—and to open up discussion on matters of great concern to Indonesia such as the territorial sea boundary. In Singapore he found an ally in a young law lecturer and diplomat, Tommy Koh. Together Koh and Djalal organized a meeting at the Ministry of Foreign Affairs in Singapore at which a select group of Indonesians and Singaporeans forthrightly examined the views each country had about the other. As the mistrust each side had of the other began to ease it became possible to broach topics such as a territorial sea boundary. “We need to have a boundary,” Djalal recalls telling his Singaporean counterparts. “We both need it. If we don’t have one, don’t blame me if the Indonesian navy goes all the way to Johnson Pier or if your police come too close to Indonesia and we shoot them.”22 Once the two governments took the decision to begin negotiations, negotiators were able to delimit a boundary after just two days of discussion, on 7–8 May

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1973.23 The principal feature of this boundary (see figure 9.1) was that for the most part it lay south of the median line between Indonesia’s straight baselines and Singapore’s low-tide elevations. In fact, as a concession to the Singaporeans, who had certain navigational concerns in mind, one turning point, point 2, lay slightly inside Indonesia’s internal waters.24 Yet again Indonesian negotiators had gone out of their way to accommodate a neighbour in the interests of reaching agreement. Following this agreement the two governments immediately arranged to hold a signing ceremony in Jakarta at the end of May as part of a state visit by Lee Kuan Yew. In addition to the signing of the agreement by Malik and Rajaratnam the occasion marked a turning point in relations between Suharto and Lee. As well as being able to converse in a common language, Malay-Indonesian, they of course shared similar ideas about governing. At a banquet in his honour Lee praised Suharto for his “systematic dampening of politicking”, while at a press conference at the end of his visit he lauded the president for the emphasis he placed on “stability”.25 Following the visit to Jakarta Lee flew off to Lake Toba in Sumatra in an effort, so the sources suggest, to dispel the Indonesian impression that Singaporeans never took holidays. Despite the boundary agreement the two governments still had some major differences in relation to the law of the sea. So far Singapore had conspicuously

Figure 9.1 Territorial sea boundary between Indonesia and Singapore according to the agreement of May 1973

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avoided making any statements that implied recognition of Indonesia’s archipelagic claim, and during a meeting of ASEAN foreign ministers in April Rajaratnam had foiled an attempt by Adam Malik to gain the association’s endorsement of the archipelagic principle by suggesting that ASEAN was not the appropriate forum for dealing with the issue.26 The communiqué released at the end of Lee’s visit to Jakarta merely stated that the prime minister “appreciated the importance of the Archipelago Principles to Indonesia”.27 As far as the Singaporeans were concerned there was not the slightest implication that they supported the archipelagic principle.28 There were from the Singaporean point of view two great problems with that principle. The first was its implications for transit, while the second was the impact it might have on Singaporean fishermen, who had long operated within waters encompassed by Law No.4. As Djalal remarked, the first would presumably have to be worked out as part of a general deal on the problem of transit, while the second would almost certainly entail difficult bilateral discussions. He interpreted Lee’s “appreciation” as providing at least a starting point for those discussions.29 A specific difference between the two governments concerned passage through the Straits of Malacca and Singapore. During discussions with Indonesia and Malaysia in late June Singaporean officials agreed that there should be limitations on the size of tankers passing through the straits. They also agreed that rather than, as had been frequently discussed up to this point, imposing a limit on the tonnage of transiting ships, “there is a need for a limitation on [the] draught of vessels passing through the Straits”. A group of experts was to work out an appropriate “safety margin” that ships would have to maintain during passage. Nevertheless, despite conceding the need for such a restriction, the Singaporeans held firm in their view that the straits were not purely and simply part of the territorial sea of the three coastal states but were in fact an international waterway through which ships should be able to pass with nearly the same freedom as they enjoyed the high seas.30 *** While Indonesia and the Philippines’ ASEAN partners balked at showing support for the archipelagic concept there was one regional organization that was prepared to endorse the concept at this time. This was the Organization of African Unity, none of whose members would be directly affected by archipelagic claims in the way Singapore, Malaysia, and Thailand were by Indonesia’s. On 24 May its council of ministers issued a declaration that as well as supporting (at least “in principle”) the Indonesian view that straits used for international navigation should be subject to the innocent passage regime endorsed “the principle that the base-lines of any archipelagic State may be drawn by connection [of] the outmost points of the outermost islands of the archipelago for the purposes of determining the territorial sea of the archipelagic State”.31 The inclusion of these words appears to have been largely the work of Mauritian officials, one of whom consulted

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Nandan on an appropriate paragraph to include in the declaration.32 For all the archipelagic states the declaration came as extremely welcome news as the summer session rapidly approached.

THE SUMMER SESSION OF 1973 The summer session began on 2 July with a meeting at which Amerasinghe expressed his hope that this would be the final session before the conference began and the Senegalese representative asked that the OAU’s declaration be circulated to all the delegations.33 Sub-Committee II continued to convene both in formal meetings and in informal meetings of the whole. Since the goal was to produce draft articles delegations agreed on a deadline—first 15 July and then 16 July—by which to submit specific proposals that would be used to compile a comparative table of different texts that could then be used as the basis of further discussion and the preparation of revised or even entirely new proposals. In practice, this meant that delegations could submit proposals at any time during the session. Among those eager to submit a specific proposal was the Fijian delegation. Nandan and his colleagues finished drafting articles dealing with archipelagos during the first week and then circulated them to the Indonesians, Filipinos, and Mauritians for discussion. According to Nandan, the Indonesians and Filipinos insisted that there was no need for specific articles at this time but he argued that “if we did not submit articles we would lose the initiative and have to deal with articles by others that were against our interests”. They only agreed, he reported, when “we proposed to break off the negotiations with them and proceed to table independently our own draft articles” based on the articles the Fijians had submitted at the start of the session.34 According to Djalal’s account, the four archipelagic states collectively came to the realization that the three principles were not sufficient, “because many states thought they could only form a view when they had concrete detail regarding the concept and its implications for international navigation”.35 However it came about, the four delegations soon began intense discussions on a set of draft articles. After a couple of weeks they appear to have reached agreement on everything except for the crucially important articles dealing with passage. According to a US report, the Fijians went so far as to propose the application of the free transit regime (presumably as proposed by the US in the case of straits used for international navigation) to archipelagic waters (or at least lanes through those waters). Fiji’s stand was, according to a US report, “so inflammatory that Fiji[’s] status with [the] other archipelago states [was] almost jeopardized when they suggested it”.36 The Fijians appeared to have prevented a break with Indonesia and the Philippines by reaffirming their support for innocent passage. But they then decided to try to achieve their ultimate objective—a “more liberal” passage regime—in another way: they would try to have innocent passage defined in a way

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that would enable the maritime powers to accept it as the basis for transit. Unless something was done to accommodate those powers, so they thought, they would simply reject the archipelagic concept out of hand and Fiji would be left with nothing. After Indonesia and the Philippines joined with six other states to sponsor L.18 during the spring session Nandan had said that Fiji reserved the right to submit alternative provisions that might apply to transit through archipelagic waters. The Fijians now set about drafting their own set of articles on innocent passage as a counter to L.18. At stake, as they saw it, was the fate of the archipelagic concept. Just two weeks into the session, on 19 July, the Fijians submitted their draft articles on passage through the territorial sea. While A/AC.138/SC.II/L.42 retained the definition of innocent passage in the Territorial Sea Convention, it sought to provide “an objective test…in determining what acts are in fact considered prejudicial to the peace, good order and security of the coastal State”. According to article 3(2), the passage of a foreign ship would be regarded as “prejudicial to the peace, good order and security of the coastal State” if it engaged in any one of the ten activities listed in the article. These activities included “any warlike act against the coastal or any other State”, “any act of espionage affecting the defence or security of the coastal State”, and “any act of propaganda affecting the security of the coastal State”. Several of the activities listed in article 3(2) were found in L.18 as well. Thus, for example, both L.18 and L.42 referred to interference with the coastal state’s communications systems. The difference was that whereas L.18 prohibited a ship undertaking innocent passage from interfering with such communications systems L.42 proclaimed that the passage of a ship that interfered with communications systems would be considered as “prejudicial to the peace, good order and security of the coastal State” and therefore in fact not innocent. If a ship engaged in any of the listed activities its passage was by definition not innocent. If it did not engage in any of them then its passage was innocent. This was the “objective test”.37 The Fijians’ other primary objective was to achieve “greater flexibility…in relation to the passage of submarines”, which in many respects were the heart of the matter, since their strategic value depended almost entirely on secrecy. According to article 6(1), “Submarines and other underwater vehicles may be required to navigate on the surface and to show their flag except in cases where they: (a) have given prior notification…and (b) if so required by the coastal State, confine their passage to such sea lanes as may be designated for the purpose by the coastal State.” On the face of it the meaning of this article was far from clear, since it seemed to assume that the coastal state would cooperate by allowing submerged transit (on the condition of prior notification) and would take the step of designating special sea lanes. In essence, the article meant that coastal states would have the right to allow submarines to pass through the territorial sea while submerged. However we interpret the text itself, the intention was clear: submarines would, according to the accompanying explanation, be “permitted to pass submerged provided that they give prior notification of their passage and

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confine their passage to sea lanes designated by the coastal State”.38 The Fijians’ hope was that this form of words would satisfy the maritime powers. By the time Fiji submitted L.42 the sub-committee had entered another round of heated debate about passage through straits used for international navigation. On 16 July Italy had submitted a proposal that transiting ships and aircraft would be subject to the innocent passage regime where a strait connecting two parts of the high seas was not more than 6 miles wide but would have “the same freedom of navigation or overflight as exists on the high seas” where such a strait was more than 6 miles wide.39 Among those representatives of straits states who attacked the Italian proposal was Hasjim Djalal. The Indonesian view, he told the sub-committee, was that “the regime of the territorial sea, as part of the sovereign territory of a coastal State, was indivisible and that consequently the applicable regime of passage could not be differentiated”. Innocent passage should not be applicable only to straits no more than 6 miles wide. But, he went on to explain, Indonesia had a special worry, and that was that Indonesia’s archipelagic waters, “lying as they do between the Indian and Pacific Oceans”, could be considered as connecting two parts of the high seas. If so, that would mean that ships and aircraft transiting those waters would have the same freedom as they enjoyed on the high seas. Djalal sought the assurance of the Italian delegation that it did not intend its proposal to apply to archipelagic waters. Immediately after Djalal’s statement a Spanish delegate attacked the proposal as well.40 On 24 July, as there appeared to be no prospect of compromise, Nandan introduced L.42 to the sub-committee, explaining that its purpose was to consider “how the concept of innocent passage was to be applied in practice”.41 During another meeting later that day as well a further meeting the next day there were two sorts of reactions to the proposals. On the one hand, a broad range of delegations welcomed the proposal. Canada described it as “a sophisticated attempt to solve one of the most intractable problems” facing the upcoming conference, India told the sub-committee that it “merited careful study”, remarking that it had tackled the problem of defining acts incompatible with the concept of innocent passage “in a courageous and constructive manner”, and Kenya noted that L.42 “introduced concrete and novel ideas”, while Singapore and Sri Lanka both encouraged consideration of the proposal.42 On the other hand, the superpowers did not mention it at all during statements on 25 July in which they attacked L.18. This was, in fact, as US officials told Nandan, their way of indicating that, while they remained committed to free transit, they regarded L.42 as providing at least a constructive contribution to the debate and a basis for future negotiations.43 During the formal meetings of the sub-committee no delegation uttered a word of criticism of L.42. According to Nandan, the “acclaim” for L.42 “had a noticeable effect on the Philippines and Indonesia”.44 Be that as it may, the reaction to the proposal certainly emboldened the Fijians in their discussions with the other archipelagic

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states. When the Filipinos and Indonesians “held out for wider powers to suspend and interfere with passage through ‘archipelagic sealanes’”, so Nandan reported, the Fijians told them that unless there was agreement by 31 July Fiji would submit its own proposals on archipelagic states. Moreover, they took the precaution of lodging these proposals with the secretariat with the instruction that it was to issue them on that date unless Fiji retracted them in the meantime. They did this in order to ensure that “the Philippines and Indonesia did not rush through draft articles of their own behind our backs and thereby gain advantage over us by having theirs issued first”. Finally, according to Nandan’s account, after much “table banging and display of temper and attempts at intimidating” the Fijians by “the Philippines delegation in particular, and the Indonesians”, the four delegations agreed on a compromise text. The following were its principal features:45

Definition Unlike L.15 the text made it clear that its provisions “apply only to archipelagic States”. It then took a very simple but important step. The first principle of L.15 had proclaimed that an “archipelagic State, whose component islands...form an intrinsic...entity..., may draw straight baselines connecting the outermost points of the outermost islands...of the archipelago…”. A major problem with this wording was that it assumed that the archipelagic state and the archipelago were coterminous: the state encompassed a single archipelago. That of course was exactly how the Indonesians and Filipinos conceptualized their states but the Fijians had had the idea right from the start that certain remote islands such as Rotuma were not part of the Fijian archipelago even though they were part of the state of Fiji. The delegations therefore decided that they had to make a distinction between an archipelagic state and an archipelago and accordingly came up with definitions of each of these concepts: (1) Article 1(2) defined an archipelagic State as “a State constituted wholly or mainly by one or more archipelagos”. Thus, for example, Fiji qualified as an archipelagic state, as it was “mainly” constituted by the Fijian archipelago, while Mauritius would qualify as well, since it was “mainly” made up of (according to one view) a number of small archipelagos. (2) Article 1(3) defined an archipelago as “a group of islands and other natural features which are so closely interrelated that the component islands and other natural features form an intrinsic geographical, economic and political unity or which historically have been regarded as such”. This definition of an archipelago differed in several ways from the one implicit in L.15. First, it made clear that an archipelago was a “group” of islands as compared to, say, a chain of islands such as the Aleutians. Second, it declared that it was the interrelatedness of the islands—geographically, economically, and politically—that enabled them to form “an intrinsic unity”. And, third, rather than requiring as L.15 had that the islands form an intrinsic entity and “historically have or may have been regarded as such”

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it dropped history as one of the requirements. Now an archipelago was a group of islands that either formed an intrinsic unity or had been historically regarded as such. The delegations made this change to accommodate the Fijians, who had been concerned that their archipelago might in fact not have been regarded as forming an intrinsic unity in the past. During their discussions the delegations had tried to formulate “concrete” criteria such as limitations on the length of the straight baselines or a ratio between the area of the islands and the area of the waters enclosed by the baselines but, as Djalal explained to a US delegate official, they were unable to come up with any formula that satisfied all four states. He responded to the US delegate’s protests by insisting (so the official reported) that “this was [the] best they could do”.46

Jurisdiction Article 3(1) followed the second principle very closely by declaring that “The waters enclosed by the baselines, which are referred to in these articles as archipelagic waters, regardless of their depth or distance from the coast, belong to and are subject to the sovereignty of the archipelagic State to which they pertain”. The only change was to introduce the concept of “archipelagic waters”. By adopting this terminology the delegations neatly sidestepped the question of whether the waters inside the straight baselines had the status of internal waters as they had under Indonesian and Philippine law. The implication of article 3(1) was that these waters were not exactly like either territorial seas or internal waters but had a unique character. That unique character became clear in the articles dealing with passage. Passage The passage provisions in the archipelagic states’ text closely followed the second principle in L.15. According to article 4, “innocent passage of foreign ships shall exist through archipelagic waters”. There was still no mention of whether innocent passage existed as a right or as a concession by the archipelagic states. Article 5(1) allowed an archipelagic state to designate sea lanes for the passage of foreign ships through its archipelagic waters and to restrict the innocent passage of foreign ships to those sea lanes. According to article 5(4), an archipelagic state was expected “to take into consideration” such things as the “recommendations of competent international organizations” and “channels customarily used” when prescribing traffic separation schemes within sea lanes. The implication was that it would not need to do any of those things when designating the sea lanes themselves. Article 5(5) gave an archipelagic state the right to make laws and regulations applicable to passage through these sea lanes concerning a wide range of matters including “the preservation of the peace, good order and security of the archipelagic State”, while article 5(8) allowed an archipelagic state to require a warship that had failed to conform to the innocent passage regime to leave its waters as quickly as

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possible along a route chosen by the state. Finally, while article 5(9) prohibited an archipelagic state from suspending innocent passage through a sea lane, it then added that the state could do so “when essential for the protection of its security” as long as it gave “due publicity” to such a suspension and substituted other sea lanes to take the place of those through which innocent passage had been suspended. All this revealed the special character of “archipelagic waters”. In the minds of the four delegations the archipelagic state’s sovereignty over its archipelagic waters was absolute. That sovereignty was in no way qualified in the article dealing with the status of these waters, namely, article 3. In this respect archipelagic waters were like internal waters. Article 4 did provide for innocent passage. In this respect archipelagic waters were like territorial seas. But article 5 made it clear that unlike in the case of territorial seas the state would have the right to confine innocent passage to sea lanes designated by the state. Thus, as the four delegations saw it, the waters between the islands making up an archipelago had a status unique to archipelagic states.47 The four delegations appear to have finalized their text just before Fiji’s deadline of 31 July but they did not submit it immediately because they first had to obtain the approval of their respective governments. The Fijians reserved the right to submit their own set of articles if their government did not approve the compromise text. Then, on 2 August, as the delegations were waiting to hear from their governments, another text on archipelagic states suddenly appeared on the scenes. Apparently unbeknownst to the four delegations the UK had been working on a text of its own, reasoning that if the convention was going to contain provisions for archipelagic states then it would be better to have provisions that the UK and other maritime powers could live with. Nandan had feared that the archipelagic states might lose the initiative if they failed to submit concrete articles. This turn of events, he reported, confirmed that his fear had been well founded.48 Reflecting the perspective of a maritime power, the UK text, numbered A/AC.138/SC.II/L.44, differed from the archipelagic states’ text in quite fundamental ways:

Definition Unlike the archipelagic states’ text L.44 set out specific criteria that had to be met before certain waters could be enclosed in straight baselines. Specifically, a state could declare itself to be an archipelagic state if it was made up of three or more islands and it was possible to draw straight baselines between the outermost points of the outermost islands in such a way that no baseline was longer than 48 miles and the ratio between the area of the sea enclosed within these baselines and the area of the land was no greater than 5:1 (five to one). If only some of the islands belonging to a state met these criteria, then, according to the UK draft, that state could declare the waters within the straight baselines around those islands to be archipelagic waters, thus leaving at least some of the waters between the islands

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making up the state as part of the high seas. Unlike in the archipelagic states’ text there was no mention of islands having to form an intrinsic unity. The only thing that mattered was whether the islands in question conformed to the two criteria.

Jurisdiction Like the archipelagic states’ text L.44 recognized the sovereignty of the archipelagic state over the waters within the baselines, but it was a qualified, even grudging recognition. Whereas the relevant article in the draft from the four states stressed that the state’s sovereignty applied regardless of the depth of the water or its distance from the coast and that it extended not only to the water column and the seabed but also to the airspace above the archipelagic waters, the UK draft emphasized that it was subject to other articles in the draft as well as “to other rules of international law”. The most important of these “other articles” concerned passage. Passage According to L.44, the routes that foreign vessels had taken through the waters of an archipelago before those waters had become archipelagic waters would be treated “as if they were straits”, thus giving those vessels greater freedom than if they were subject to the innocent passage regime that applied to the territorial sea. Unlike in the archipelagic states’ text there was no specific mention of warships; all ships were the same. The primary purpose of L.44 was, as an introductory note explained, to establish “objective criteria and to elaborate the legal status of the States concerned”. The UK delegation did not presume that a future convention would adopt the particular provisions of their text. Instead, the note explained, it hoped that it would serve as a basis for discussion and negotiation. Indeed, it did not necessarily represent the final position of the UK. By sometime shortly after the UK submitted its text the governments of all four archipelagic states had approved the compromise worked out by their delegations. The four delegations then submitted their text as A/AC.138/SC.II/L.48 of 6 August 1973. The plan apparently was for Victor Glover of Mauritius to introduce L.48 to the sub-committee sometime in the next week or so. Before that could happen, however, the great inspiration behind the formation of the Seabed Committee, Arvid Pardo, speaking as Malta’s representative, raised what he regarded as a basic flaw in the approach being taken by the archipelagic states. Pardo’s original vision was that the seabed of virtually all the world’s oceans would become part of the Common Heritage of Mankind. Now that vision appeared to be evaporating before his eyes as more and more states made claims to maritime jurisdiction of one sort or another. In a marathon statement on 8 August he singled out the first principle in L.15 for special attention.49 Pardo observed that except for Nauru (which consists of a single island) all states made up of

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islands would be archipelagic states according to L.15 and it would be possible for “a number of other archipelagos which constituted an integral part of a coastal State” to enclose “as internal waters tens of millions of square kilometres of the high seas”. At one point he suggested that if the provisions of L.15 were to be incorporated into a convention Hawaii and the (2000-mile-distant) island of Wake could be regarded as forming an archipelago. He also used Indonesia as an example, pointing out that the Anambas and Natuna islands were “hundreds” of miles from the principal islands of Indonesia. In addition, Pardo was critical of the second principle of L.15 not only because “what was conceded through national legislation could also be withdrawn through national legislation” but also because the concept of innocent passage left it to the coastal state to determine whether or not passage was innocent. Then, to round off his attack, he said he could see “no legitimate reason” for allowing states made up of islands not only to claim vast areas of the sea as internal waters but also to claim 200-mile-wide economic zones “around the perimeter of the archipelago”. Pardo’s assault on L.15 moved Hasjim Djalal to respond just a few minutes later.50 He charged Pardo with giving “an erroneous interpretation of the basic concept of the archipelagic State”. It was, he suggested, ridiculous to think that Hawaii and Wake could be regarded as forming a geographical unity. And the Anambas and Natuna islands were not hundreds of miles from the principal islands of Indonesia but 60 or 70 from Borneo and there were islands lying between them. He noted that according a draft article that Malta had presented both Anambas and Natuna would be regarded as “principal islands”. “At least,” he added, “those populated islands were much bigger than Malta.”51 He corrected Pardo’s description of the waters inside straight baselines as “internal waters”, noting that L.48 in fact referred to them as “archipelagic waters”. And he pointed out that Pardo had ignored the provision in L.15 that when archipelagic states introduced regulations in relation to the passage of foreign ships they would do so “having regard to the existing rules of international law”. But most of all, Djalal implied that Pardo had completely failed to understand the whole point of an archipelagic state. Indonesia, he explained, saw the archipelagic concept as a means of “protecting its economic development, political stability and security”. During his reply Djalal had referred to L.48 but only to refute one of Pardo’s arguments. L.48 had yet to be formally introduced to the sub-committee. But the day after this exchange, 9 August, Tolentino jumped the gun.52 The ostensible purpose of his statement was to introduce proposals regarding “historic waters”. The Filipinos were deeply concerned that if a convention were to fix the maximum width of the territorial sea at 12 miles then the Philippines might be expected to abandon the principle now embedded in Philippine law that its territorial sea extended from the country’s straight baselines out to its treaty limits (figure 8.1). They therefore drafted two articles that they hoped would get around this problem. The first of them declared that “Historic rights or title acquired by a State in part of

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the sea adjacent to its coasts shall be recognized and safeguarded”, while the second declared that the article stipulating the width of the territorial sea “shall not apply to a part of the sea adjacent to the coasts of a State which it acquired by historic right or title”.53 In the course of introducing these proposals Tolentino recounted how the US had gained all the waters within the treaty limits from Spain in 1898 and how the Philippines had in turn acquired them from the US. The Philippines historic title to these waters, so he implied, was self-evident. Then, pre-empting the statement Glover was to give, Tolentino turned his attention to L.48. The point he wanted to make concerned the passage of foreign ships. The archipelagic states were, he said, making a great concession by accepting that the waters inside the straight baselines would be subject to innocent passage, “even where they had never been previously regarded as part of the territorial sea or of the high seas”. (Here he was referring to the waters lying between the islands making up the Philippines. These waters had, so he implied, been internal waters since time immemorial.) Both for this reason and because archipelagic waters lay at the very heart of the archipelagic state, “forming a unity with the surrounding islands”, the archipelagic state should be allowed “greater flexibility in regulating the passage of foreign ships through archipelagic waters than in the territorial sea”. Thus, while archipelagic waters would be subject to innocent passage, it would not have the same meaning as it had in the territorial sea. By the end of this statement Tolentino had dropped two bombshells that could, if ever allowed to detonate, destroy any hope of consensus: one that in effect allowed a state to claim a territorial sea of any width as long as it could assert “historic title” and another that meant that the concept of innocent passage would have different meanings in different parts of the convention.54 At this point Pardo re-entered the fray. He refused to accept Djalal’s response the previous day. Natuna Island was between 130 and 150 miles from Borneo, he said, and there was no reason at all not to regard Wake as part of the Hawaiian archipelago, “for it was on the same submarine ridge as Hawaii” and indeed formed, along with Midway, “an economic entity with Hawaii”. He acknowledged that Wake was very far from Hawaii but suggested that that was irrelevant as far as L.15 was concerned. He had, he said, skipped over the phrase “having regard to the existing rules of international law” because he was not sure what that had meant, since there were no such rules when it came to archipelagos. Thanks to the statement just given by the Philippine representative, he said, he now understood its meaning better but now raised a new point. While he appreciated the desire of the archipelagic states for unity, he suggested that that goal “could best be met within the concept either of the economic zone or patrimonial sea” or Malta’s own concept of “national ocean space”.55 Again, Djalal responded. It was not true that Natuna was 130 miles from Borneo but in fact 60 or 70 miles from the Subi group, “which Indonesia regarded as forming part of Borneo”.56 And it required “a real stretch of the imagination to assert that Wake Island and Hawaii formed one geographical entity”. “Of course,” he added, “it could well be claimed that the

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whole world was an entity, for all countries were linked together by the crust of the earth.”57 For the time being this brought to an end this clash between two world views, one exemplified by Pardo’s stance that took a text at its literal meaning and another typified by Djalal’s response that took the entities imagined by Indonesians as having a reality that should be obvious to all to see—if Indonesians regarded certain islands as being part of Borneo then they were part of Borneo. Also clashing were the Philippine and US views on the meaning of the 1898 treaty. The US representative, Bernard Oxman, was categorical: “The United States Government had never received, exercised or transferred sovereignty, except for land areas of the Philippines and the three-mile territorial sea around each island.”58 That hardly made sense, Tolentino replied. Otherwise there would have been no reason for the US and Spain to have “specified boundaries of up to 180 miles seawards in the direction of the Pacific and 147 miles from land in the direction of the China Sea”. Besides, he argued, the 1932 fisheries act, legislated by the US, confirmed that all the waters within the treaty limits belonged to the Philippines.59 A few minutes later the meeting came to an end. A lot of water had flowed under the bridge by the time Victor Glover finally introduced L.48 on 13 August. Stressing the criterion of unity, he argued that the application of “extraneous criteria” would “only lead to arbitrariness and confusion”. Nandan in turn expressed the hope that L.48 would help dispel any doubts some delegations might have about how the archipelagic principles would be applied in practice.60 And Djalal gave a long statement reminding the delegates of the “sad history of our people during the colonial domination”, calling attention to the fact that in March Indonesia’s parliament had proclaimed that the archipelagic principles “shall continue to be the basis for Indonesian national policies”, and going through the articles one by one.61 Like the Filipinos the Indonesians, he implied, were not satisfied with the passage provisions in L.48. The “very essence of free passage required by the global powers concerns the vital security and political stability of an archipelagic state like Indonesia”. For this reason, he said, Indonesia would reserve the right to submit separate draft articles on the passage of warships, including submarines, “when and if necessary at an appropriate time”. Towards the end of this meeting the UK representative, Harry Dudgeon, offered some comments on L.48. He stressed that while the UK fully understood the importance the archipelagic states attached to the concept of unity L.48 did “not go far enough along the road towards a definition”. A definition of course was exactly what the UK had tried to provide in its own text, but in introducing L.44 Dudgeon emphasized that the British were not tied to the particular formula they had proposed. They were, he said, ready and willing to try to work with other delegations in the hope of reaching an accommodation.62 At least as it stood, none of the four archipelagic states found L.44 acceptable, for two reasons. The first concerned the UK’s formula for drawing straight baselines. With the possible exception of Fiji none of four states liked

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the “mathematical” approach taken by the British.63 It failed to capture the spirit of unity that lay at the heart of the archipelagic concept. Moreover, the figures proposed by the British failed to accommodate any of the four states. The Fijian archipelago fell somewhat short of meeting either criterion, while Mauritius (at least when taken as a whole) did not come remotely close to satisfying them. The Philippines met the criterion concerning the maximum ratio between water and land but had many straight baselines longer than 48 miles. Similarly, Indonesia fulfilled the first criterion—its water-to-land ratio was about 1.2:1—but because it had a large number of straight baselines longer than 48 miles, including a few between 100 and 125 miles long, it did not satisfy the second. Figure 9.2 shows what the limit on the length of straight baselines in the British proposal would have meant if it had been applied to Indonesia. It would have been possible to connect all of Indonesia’s main islands with one another but a few groups of islands—most notably the Aru, Anambas, and Talaud islands—would have been separated from the rest of Indonesia by areas of high seas. Most of the waters within the main group of islands would also have had the status of high seas. Thus, a ship entering the Java Sea by way of the Makassar Strait would have been able to sail to within a few miles of Jakarta without ever leaving the high seas. From the Indonesian point of view the British proposal shattered the unity so elegantly expressed by the map accompanying Law No.4. It was completely unacceptable. The second reason the four states found L.44 unsatisfactory was the passage provision. None of them wanted the routes that foreign ships had once used to pass through their archipelagos treated “as if they were straits” if that meant allowing the same freedom of passage along those routes that the major maritime powers were demanding in straits used for international navigation. All of them were committed to the innocent passage regime, even if they had different ideas of exactly how that regime should be defined. Despite their objections none of the four archipelagic delegations took the opportunity to attack L.44 either after Dudgeon spoke or when the sub-committee met the next day. This may have been because in one respect at least some of the archipelagic states regarded the British proposal as a positive development. According to Nandan, L.44 marked a “significant step forward”, since it showed that “for the first time in the history of international law” the maritime powers “acknowledge the justice of the archipelagic claim and are actively seeking a solution to the question”.64 Nevertheless, at least from the Indonesian point of view L.44 posed a real problem, for it threatened to shift the terms of the debate. There now appeared to be a strong possibility that the concept of an archipelagic state would gain general acceptance but that would mean little unless it met the objectives the Indonesians were trying to achieve. As before, the two great stumbling blocks concerned the definition of an archipelagic state and the question of passage. In statements the day after the

Figure 9.2 Indonesia’s archipelagic waters defined in accordance with the UK’s proposal, August 1973

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introduction of L.48 and L.44 both the Australian and Soviet delegates, while expressing support for the archipelagic concept, emphasized the need to find solutions to both of those problems.65 *** As the summer session drew to a close it was obvious that the delegations would not be able to agree on a set of draft articles that could serve as the basis of negotiations at the conference. The best they could do was to prepare a number of documents setting out various proposals on the questions the conference would be dealing with. Thus, for example, one document had a table titled “Archipelagos” that placed the two proposals from the archipelagic states, L.15 and L.48, in the first column and the UK proposal, L.44, in the next column.66 Some delegations believed that more work had to be done before the conference could begin, while others argued that the conference should get underway as planned, for otherwise more and more states would begin to make unilateral claims to ocean space. On the final day of the session, 24 August, the committee decided to leave it to the UN General Assembly to decide whether the conference should proceed as planned. There was also debate about how the conference should be organized once it began. Most delegates took the view that they should adopt the model of the Seabed Committee by having one committee on the deep seabed, one on the territorial sea and other matters related to national jurisdiction, and another on the marine environment and scientific research. There was much less agreement concerning the rules of procedure. The major maritime powers, which collectively would have just a few votes at the conference, were adamant that the conference should proceed on the basis of consensus just as the Seabed Committee had so far. They argued that any convention that failed to accommodate the interests of states generally would have little meaning. Other delegations, however, feared that the intransigence of a small number of states could derail the conference unless the rules provided for voting in certain circumstances. This matter too was left to the General Assembly to consider.

“THE MALAY ARCHIPELAGO” During the final session the Malaysian delegation stunned the Indonesians with an idea it had been considering. During informal talks the Malaysians put forward the concept of the “Malay Archipelago” (Gugusan Pulau-Pulau Melayu).67 They envisaged a single archipelago encompassing Malaysia, the Philippines, and Indonesia. There would be a single system of straight baselines enclosing the three states. No source that we have indicates just how

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committed the Malaysians were to this idea, but the Indonesian delegation was deeply alarmed by it. If it ever came into being, it would, as Hasjim Djalal put it, “swallow up” Indonesia and “eliminate” the archipelagic concept the Indonesians had been fighting for since 1957. Actually, the Indonesians believed it had little chance of gaining international acceptance, since all the negotiations aimed at achieving a convention on the law of the sea were premised on the primacy of the nation-state in international politics. It would be difficult enough trying to gain recognition for the concept of an archipelagic state let alone the idea of a regional archipelago. What they really feared was that introducing the concept of a regional archipelago would sabotage everything they had been working for. It would create immense confusion and Indonesia could end up with nothing. Both during the session and in discussions in Kuala Lumpur after the session Hasjim Djalal used every argument he could think of to discourage the Malaysians. He argued that the conference would never accept straight baselines as long as one Malaysia proposed that stretched all the way from Sabah at the northern tip of Borneo to the border between Malaysia and Thailand on the Malay Peninsula. He asked whether the concept would exclude Papua New Guinea and pointed out that not all the peoples of Indonesia were “Malay”. But most of all he focused on the fact that Singapore would sit right at the centre of the archipelago that the Malaysians envisaged. Would, he asked, Singapore be included? The Malaysians replied that there was no reason why it could not be included. In his desperation he then pointed out that Singapore could hardly be described as “Malay” and asked whether Malaysia would be happy for Singaporeans to have full freedom to exploit the fishery and other resources of the waters enclosed within the straight baselines. That appears to have put an end to the idea, which according to Djalal was never mentioned again.68 Djalal’s arguments did not, however, put an end to the problem that gave rise to the idea in the first place. The Malaysians had floated their proposal as a means of overcoming the problem posed by the presence of Indonesian islands in the waters between West and East Malaysia. If Malaysia and Indonesia shared a common archipelago then Malaysians would enjoy the same freedom to move about on (and over) these waters as the Indonesians. The problem would cease to exist. Now that the Malaysians had abandoned that idea some other way would have to be found to solve that problem. For the Indonesians Malaysia’s insistence on special rights in Indonesia’s waters lying between West and East Malaysia not only posed a challenge to Indonesia’s sovereignty over those waters but also weakened the stand both countries were taking in relation to passage through the Malacca Strait. It would, Djalal remarked, be extremely difficult to argue that innocent passage was entirely adequate for the passage of foreign ships through the strait when Malaysia obviously regarded innocent passage as failing to satisfy its own needs in the waters between the Malay Peninsula and East Malaysia.69

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TOWARDS THE CONFERENCE As states waited for the General Assembly to decide whether the Seabed Committee had made enough progress to begin the conference a great deal of attention both internationally and within Indonesia was focussed on one of the issues that had motivated planning for a conference in the first place: the question of passage through and over straits used for international navigation. When war broke out in the Middle East in October, the US’s NATO ally Spain refused to allow US military aircraft carrying supplies to Israel to operate from US bases in Spain, thereby forcing the aircraft to enter the Mediterranean by way of the Straits of Gibraltar.70 This episode strengthened the US view that “an internationally guaranteed right of access through international straits was indispensible to the projection of U.S. force”.71 A short time later the Indonesian government came under pressure to reaffirm its very different position on straits when the USS Hancock and other ships belonging to the Seventh Fleet transited the Malacca Strait on their way to the Indian Ocean without notifying the government beforehand. In response to outrage expressed by several newspapers Adam Malik told the press that Indonesia “deplores [menyesalkan]” the failure of the US to inform the government. The waters of the Malacca Strait, he said, “are the territorial waters of the states bordering the strait”. He added that the government had not yet decided whether to lodge a protest.72 Malik’s admonition of the US for its failure to provide prior notification was, it appears, largely for domestic consumption. General Sumitro explained to the US ambassador that the foreign minister “could hardly have remained silent when Hancock passage was front page news”. In the end the government did not make a formal protest. Nevertheless, the ambassador was left with the feeling that “we must expect a sharp reaction the next time a major US warship transits the straits”.73 Just two weeks after the Hancock’s passage two Soviet warships transited the Malacca Strait without providing prior notification. Again the government issued a statement deploring the unannounced passage. This time the passage was somewhat overshadowed by student unrest surrounding the presence in Indonesia of the chairman of the Inter-Governmental Group on Indonesia, a body made up of various states that provided aid to Indonesia, but again the US Embassy remarked that the issue “remains a major focus of emotional nationalist sentiment which can surface at any time”.74 On 16 November, a day or two after the two Soviet ships transited the strait, the UN General Assembly decided to go ahead with the conference as planned. While some states argued that there should be a further meeting of the Seabed Committee, most believed that the time had come to begin serious negotiations.75 The General Assembly decided to hold a brief session in New York in December to resolve procedural questions and a longer session in Caracas from 20 June to 29 August 1974 to begin discussion of the questions that had motivated the conference. It also made provision for one or more sessions in 1975 “if necessary”. As well as resolving

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to begin the conference the assembly discussed the principles that should guide the way it reached decisions. Particularly because of the concern the superpowers and their close allies had that they could easily be outvoted by the G77 the General Assembly approved what it called the “gentleman’s agreement”: Recognizing that the Third United Nations Conference on the Law of the Sea at its inaugural session will adopt its procedures, including its rules regarding methods of voting, and bearing in mind that the problems of ocean space are closely interrelated and need to be considered as a whole and the desirability of adopting a Convention on the Law of the Sea which will secure the widest possible acceptance, the General Assembly expresses the view that the Conference should make every effort to reach agreement on substantive matters by way of consensus; that there should be no voting on such matters until all efforts at consensus have been exhausted; and further expresses the view that the Conference at its inaugural session will consider devising appropriate means to that end.76 The inaugural session, held in New York from 3 to 15 December, was able to establish the basic organizational structure of the conference. There would, as planned, be three main committees. The First Committee was to discuss an international regime for the seabed beyond national jurisdiction. The lengthy agenda of the Second Committee, the one of greatest importance to Indonesia, included the territorial sea, straits used for international navigation, the continental shelf, the exclusive economic zone, the high seas, landlocked countries, archipelagos, and the regime of islands. And the Third Committee was to discuss the preservation of the marine environment and scientific research of the oceans. In addition, the delegates established a General Committee, a body made of regional representatives as well as the officers of the conference which was given responsibility of discussing organizational matters, and a Drafting Committee. The delegates also elected the principal officers of the conference. The chairman of the Seabed Committee, H.S. Amerasinghe, was elected as the conference president. The three committee chairmen were Paul Engo of Cameroon (First Committee), Andrés Aguilar of Venezuela (Second Committee), and Alexander Yankov of Bulgaria (Third Committee). Of enormous consequence to the archipelagic states was the election of Satya Nandan as the rapporteur of the Second Committee.77 The delegates had much less success translating the basic principles in the gentleman’s agreement into specific rules of procedure.78 At what point could it be said that a consensus had been reached? Who would make this decision? Who was to decide when all efforts at reaching consensus had been exhausted? If it did become necessary to hold a ballot what majority would be required in order

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to pass a resolution? The superpowers demanded rules that allowed voting only in exceptional circumstances and required substantial majorities when a vote was taken, while the G77 fought for rules that would, they hoped, prevent a few states from holding up the work of the conference. Because the delegates had not reached agreement on these basic questions by the time the session ended they decided that the conference would have to resolve them at the beginning of the Caracas session. Assuming they could overcome this problem, the conference could then get down to work.

CHAPTER 10

Preparing for Caracas Caracas for Preparing

Following the New York session governments around the world scrambled to put themselves in the best possible position for the Caracas session. At that point no one knew how many sessions there would be. It was therefore in the interests of all governments to define, promote, and defend their positions in every way they could over the next six months. For Indonesian officials dealing with the law of the sea as well as for their counterparts around the world the end of the New York session marked the beginning of a frantic period of travel, negotiation, and hard choices. In Indonesia’s case the goal—recognition of the archipelagic concept—was certain but precisely what form that concept would finally take and indeed whether it would ever be recognized in any form were anything but certain.

THE US INITIATIVE The first opportunity the Indonesian government had to promote its position on archipelagos came early in January 1974 when Hasjim Djalal attended a meeting of the AALCC in Tokyo. The meeting was from his point of view a great success, largely because the Japanese and the Australians (attending as observers) expressed sympathy for Indonesia’s position at the meeting.1 But Indonesia still had a long way to go before gaining the sympathy of the Americans. Apparently as a result of a conversation with the Australian observer Djalal sought out the US observer, Bernard Oxman, who regarded Djalal’s speech at the meeting as “doctrinaire”, for a private conversation on archipelagos. He emphasized as he had in the past the importance the Indonesian government placed on receiving notification before ships passed through Indonesian waters but told Oxman the government would be flexible regarding the precise form that could take. Indeed, alluding to submarines, Djalal “appealed to [the] US to come up with some kind of notice formula that did not prejudice its needs for secrecy”. He also pressed for some kind of “expression of support for [the] archipelago theory”. This was necessary, he insisted, to “strengthen the hand” of those such as himself and Mochtar who wanted to reach an accommodation with the big powers. Others in the government, he said, took 226

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the view that because of the ever increasing support for the archipelagic concept there was no need for such an accommodation. Oxman, however, was not moved, for as far as US officials were concerned there could be no meaningful recognition of the archipelagic concept without the support of the major maritime powers. That support, he told Djalal, would never come unless the archipelagic states adopted a more accommodating approach to navigation and overflight. On several occasions Djalal suggested that Indonesia and the US find some sort of bilateral solution to the question of warships but Oxman maintained the US view that such a solution was unacceptable. The message Oxman took from this conversation was that Indonesia would not necessarily insist on prior notification or flatly reject the submerged passage of submarines.2 Shortly after this encounter the US government decided to initiate consultations with Indonesia on the questions of archipelagos and straits. The Americans believed that any understanding they reached with the Indonesians on archipelagos would be acceptable to the Fijians and the Filipinos as well.3 The Fijians were of course little problem from the American point of view. The only difficulty they presented was that they would make every effort they reasonably could to maintain a common line with Indonesia and the Philippines. The Filipinos were a far greater problem. Djalal’s speech to the AALCC may have been “doctrinaire” but the Philippine delegate’s was (so Oxman reported) “worse”. Moreover, the Filipinos showed little flexibility in private conversations. The only hope from the US point of view would be to reach an understanding with Indonesia and thereby put pressure on the Philippines to fall in line. US officials also hoped that if they could find a way of accommodating the Indonesian government’s archipelagic aspirations the Indonesians would in turn be more willing to accommodate US objectives in relation to straits used for international navigation.4 With these calculations in mind President Nixon wrote to Suharto on 1 February. “I understand the economic and political interests which underlie Indonesian advocacy of [the archipelagic] concept and understand your nation’s strong interest in securing its recognition,” he wrote. But, he added, going to the heart of the US rationale for maintaining the greatest possible freedom of mobility, “I am equally sure you will understand that my country, as well as other members of the international community have a strong interest in the protection of navigation rights and the maintenance of high seas freedoms that are so essential for the protection of the security interests of all nations”. He was confident that the two governments could reach an accommodation that would serve as the basis for an agreement “among all concerned states” and declared that he would be “pleased” to send a delegation to Jakarta in the very near future to explore these matters with Suharto’s representatives.5 In response Suharto thanked Nixon for his interest in the archipelagic principle, acknowledged “the special needs and interests” of the US, and expressed his government’s readiness to receive a US delegation

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in the latter part of March.6 The two governments soon agreed to hold the “consultations” on 25–26 March. *** By this time there had been an important development on the Indonesian side. On 17 January the government announced that Mochtar had been appointed minister of justice.7 This was a big step for him, for although he had served as an adviser to the Mines Department for many years and also been deputy chairman of Pankorwilnas he had not had a full-time position within the government since his brief stint at LAAPLN in 1957–58. His primary work in recent years had been at Padjadjaran University as a law professor, dean of the law faculty, and most recently as the university’s rector. But the Justice Ministry offered him an enormous opportunity. Up to this point he had shaped policy as a scholar, adviser, and negotiator. Now he would have a measure of real authority within the government. Djalal had had this in mind when he encouraged Mochtar to accept the appointment, emphasizing that as minister he “would be able to push Indonesia’s efforts to develop its oceans policy”.8 That, it appears, was what he had every intention of doing. He would, however, have much else to do. He would, among other things, be primarily responsible for policy regarding political prisoners, implementation of a new marriage law, and any changes the government might make to electoral laws as it tried to diminish the role of political contestation in national life. *** In the lead-up to the consultations both governments assigned senior officials to the discussions. The two leading negotiators on the Indonesian side were Air Vice Marshal Sudarmono, who had replaced Admiral Subono as chairman of Pankorwilnas in 1973,9 and Idrus Nasir Djajadiningrat, who was now the director-general for political affairs in the Foreign Ministry. Notably absent from the team was Djalal, who was in Africa, as we shall soon see. The leader of the US delegation was John Norton Moore, the chairman of the Inter-Agency Task Force on the Law of the Sea and the deputy leader of the US delegation to UNCLOS III, with whom Djalal had done battle during the spring 1973 session of the Seabed Committee. Among the members of his team were Bernard Oxman; the State Department’s geographer, Robert Hodgson; Vice Admiral Max Morris, representing the Joint Chiefs of Staff; and Myron Nordquist, a State Department lawyer who was then serving as the office director of the Inter-Agency Task Force.10 Acting as their guide in Jakarta was the new US ambassador to Indonesia, David Newsom. The plan was that he, Moore, and another member of the delegation would call on Mochtar and Malik during the visit.11

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The Americans approached the consultations with a sense of urgency, since they hoped to reach agreement with the Indonesians before the upcoming Caracas session, where (so they said to the Indonesians) there was likely to be agreement on many important elements of a convention.12 In keeping with this sense of urgency they presented the basic US position in stark terms: the US would support the archipelagic principle as part of a universally recognized treaty on the condition that there was (1) a “reasonable limitation” of that principle to island nations according to “objective” criteria, (2) “full protection of transit” through and over archipelagos, and (3) Indonesian support for “unimpeded passage of straits used for international navigation”. They then elaborated on these conditions. On the first of these, they proposed the following objective criteria: An archipelagic island state whose component islands and other natural features form a single intrinsic geographical, economic and political entity may draw archipelagic lines connecting outer points of the outermost islands of the archipelago provided that such lines enclosing the entire island group do not enclose an area of water which will result in a land-to-water ratio of greater than 1:5 and provided that the maximum length of any such lines shall not exceed 80 nautical miles. The waters inside the “archipelagic lines” would, following the now generally accepted term, be called archipelagic waters. Expanding on the second condition, they declared that ships and aircraft would have the right to transit in “normal mode”. That would of course mean that submarines would be able to transit while submerged. The Americans emphasized, however, that ships and aircraft “should transit without unreasonable delay”. They would also be required to “refrain from any threat or use of force in violation of the charter of the United Nations against the territorial integrity or political independence of the adjacent archipelago state”. In addition, the Americans proposed that archipelagic states could, if they wished, restrict the exercise of the right of unimpeded passage to specific corridors. However, these corridors had to include all “normal” passage routes through archipelagic waters and, so the Americans proposed, would be 100 miles wide or, when they passed between two islands, occupy 80 percent of the distance between those islands. An archipelagic state could, if it wished, require ships and aircraft to provide notification if they were unavoidably forced to depart from one of these passage areas. Finally, an archipelagic state could, without discriminating between vessels, temporarily suspend navigation through one of the passage areas for security reasons. As for the third condition, the expectation that Indonesia would support unimpeded passage of straits, the Americans apparently did not elaborate on the articles they had previously proposed at the Seabed Committee.

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Many aspects of this proposal posed problems for the Indonesians. First, even though the criteria proposed by the US were less restrictive than those in the draft articles the UK submitted at the final session of the Seabed Committee, the government would still not be able to enclose Indonesia within a single system of “archipelagic lines”, since fifteen of the straight baselines in Law No.4 were longer than 80 miles. Second, there was no explicit recognition of the archipelagic state’s sovereignty over the waters inside the “archipelagic lines”. Third, while the US proposal went some way towards recognizing the archipelagic state’s security and other interests, it fell well short of what the Indonesians then regarded as acceptable. The proposal referred to the “right” of passage, whereas the Indonesians regarded it as a privilege granted by Indonesia. It gave that right to aircraft as well as ships. Since there were so many “normal routes” through Indonesia’s archipelagic waters, and since the Americans proposed that the “passage areas” be 100 miles wide, it gave ships and aircraft the right to pass through and over much of Indonesia’s claimed maritime territory. It required ships and aircraft to give prior notification of passage only if they were forced to deviate from one of the passage areas. Moreover, even the concept of “passage areas” troubled the Indonesians deeply. As they saw it, the concept implied that these areas were not fully under Indonesian sovereignty. Even worse, they appeared to divide Indonesia into several separate sections, thereby destroying the vision of unity that was the very basis of the archipelagic concept. Equally worrying, one of the normal shipping routes passed (as can be seen in figure 10.1) very close to Buru, the island where the government kept most of its political prisoners including the writer Pramoedya Ananta Toer and others incarcerated as Suharto moved to complete the elimination of the PKI. Whether the government, whose security chief General Sumitro (so the US Embassy reported) “fears that Buru may be a breeding ground for [a] future revolutionary core group”, was worried that China might try to launch a mission from one of its submarines to free some of the prisoners or incite an uprising is unclear.13 In any case, it could not accept the prospect of foreign vessels enjoying “unimpeded” passage so close to such a politically sensitive island. Finally, the Indonesian government was no happier with the US position on straits than it had been during the final sessions of the Seabed Committee. The Indonesians pointed out some of these problems during the talks. Mochtar mentioned the problem posed by the concept of “passage areas” when he met with Moore, Oxman, and Newsom in the middle of the consultations, casually remarking that he was sure good lawyers could come up with a solution, and he also referred to the government’s concerns regarding Buru. In the formal meetings Djajadiningrat also emphasized the gap between the two governments on the question of straits. But the Indonesians made no counter proposals. On several occasions they said that the government would need to give the proposals careful consideration and that they would also need to consult with the three other archipelagic states. Whether intentionally or not, however, they gave the

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Figure 10.1 Major shipping routes in the vicinity of Buru and Seram

impression that they were generally pleased with the proposals. As the Americans summarized the discussions, Sudarmono said that the Indonesian side “was thinking along parallel lines”. Djajadiningrat observed that “happily common ground had been found” and expressed his confidence that it would be possible to solve the transit problem. In fact, he led the Americans to believe that the Indonesians would act as advocates for the American position during their talks with the other archipelagic states. While referring to the need to discuss the proposals with these states, he commented that the Indonesians “might be able to bring them along”. The talks ended with an agreement that the Indonesians would consult with the other archipelagic states, the Americans would do the same with the other maritime states, and the two sides would, if possible, meet again before the Caracas session in the hope that they would be able to agree on draft articles concerning archipelagos and straits.

THE G77 MEETING While these talks were taking place in Jakarta an Indonesian delegation that included Hasjim Djalal, Nugroho Wisnumurti, and Trihardjo was in Nairobi attending a stormy meeting of the G77 convened especially to arrive at a common

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position on the law of the sea before the Caracas session. The meeting agreed that states should be entitled to economic zones extending 200 miles out from their baselines, that the width of the territorial sea should be 12 miles, and that foreign ships should be subject to the innocent passage regime when passing through straits. However, the delegations failed to agree on a number of other issues. The bitterest division occurred when the coastal states refused to go along with the insistence of the landlocked and geographically disadvantaged states, united behind a declaration that they had just issued after meeting in Kampala, that landlocked states had the right under international law of access to the sea and the demand by these states that they be given preferential access to the resources of economic zones. But the question of archipelagos proved to be highly contentious as well. The Indonesian and Philippine delegations tried to persuade the meeting to back a “broad concept” of archipelagos but for the first time they were openly opposed by the delegations of a number of Southeast Asian states including Singapore, the Republic of Vietnam, Thailand, and Malaysia.14 They did not object (at least openly) to the concept of an archipelagic state but to the proposal’s failure, as they saw it, to adequately take into account the interests of neighbouring states. Each of these delegations had particular reasons for opposing certain aspects of the proposal. The Malaysians of course were primarily concerned about retaining what they regarded as their traditional rights in the waters between West and East Malaysia. In fact the Malaysian government had by this time officially informed Indonesia that its support for the archipelagic concept depended on maintaining access to these waters.15 The Singaporeans, as we have seen, were worried about the implications the concept might have for transit and for access to traditional fishing grounds. The Thais had similar concerns. Ships travelling between the country’s eastern ports and Australia had to pass through Indonesia’s vast maritime territory, while ships sailing between Thailand’s west and east coasts had to pass through Indonesian or Malaysian waters in the Malacca Strait. But at least as great as their concern for as free a transit regime as possible was their concern about access to fishery resources in the waters delimited by Law No.4. By the early 1970s Thailand was one of the biggest fishing nations in Asia along with Japan, South Korea, and Taiwan. In the early 1960s Thai trawlers had concentrated on stocks in the Gulf of Thailand but by the late 1960s they had severely depleted these stocks and begun moving into richer fishing grounds off the coasts of Malaysia, Indonesia, and other neighbouring countries. The area delimited by Law No.4 included great expanses of relatively shallow water ideal for trawling. It was vitally important to the Thai government that the country’s fishing industry continue to have access to these “traditional” fishing grounds.16 Finally, the South Vietnamese were deeply concerned about the implications of Indonesia’s straight baselines for the delimitation of a continental shelf boundary between Vietnam and Indonesia. The two governments apparently agreed that that boundary should follow the median line between their land territories. They

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strongly disagreed, however, on which land features on Indonesia’s side should be used as the starting point for determining the median line. The Indonesians of course regarded the basepoints listed in Law No.4, in this case those in the Natuna Islands, as marking the outer edge of Indonesia’s land territory in the South China Sea but the Vietnamese insisted that the appropriate starting point on the Indonesian side was Kalimantan. Using Kalimantan as the starting point would have pushed the median line over a hundred miles to the south, thus giving Vietnam a much greater continental shelf than if the basepoints in Law No.4 were used. In keeping with this approach the Vietnamese objected to any definition of archipelagic states that would permit the Indonesian government to include the Natuna Islands within its system of straight baselines. In this respect the Vietnamese objection, while it did not challenge the archipelagic concept as such, negated its practical application to Indonesia. For this reason the Indonesian and Philippine delegations were livid. According to the leader of the South Vietnamese delegation he told his country’s foreign minister that “the delegations of Indonesia and the Philippines pressed me in [a] brutal manner to withdraw my reservations and insisted [the] RVN should support” the text they had drafted and threatened to withdraw their support for the Republic of Vietnam’s participation in the conference. None of this, however, moved the Vietnamese to back down.17 Thus all of Indonesia’s non-archipelagic neighbours in Southeast Asia were, though for different reasons, at the very least extremely wary about the archipelagic concept. They were therefore pleased when, apparently after debate had gone on for some time, the Indian delegation threw its weight behind the opponents of the Indonesian-Philippine proposal.18 India’s opposition meant that the proposal would not be incorporated into the statement that was expected to come out of the meeting. The Thais were particularly delighted. A short time after the meeting the Thais told some visiting Americans that “fortunately” Indonesia’s efforts at Nairobi were a “complete failure”.19 But at some point during the meeting, presumably after helping to sabotage the Indonesian-Philippine proposal, the Indians dropped a bombshell.20 India, they said, would be willing to support the concept of an archipelagic state but only if continental states such as India were given the right to apply the same provisions that would apply to states made up entirely of islands to any archipelagos that were part of their national territory. In India’s case that would have allowed the government to draw straight baselines around the Andaman and Nicobar Islands and the Lakshadweep Islands and enjoy whatever rights over the space within these lines that the archipelagic states would enjoy within their systems of straight baselines. The Indonesians and Filipinos were appalled by this turn of events. Conscious of the need to prevent the indiscriminate use of straight baselines, the four archipelagic states had already made it clear that their proposals only referred to states made up entirely of islands. Their great fear was that any attempt by continental states to apply the principle to “archipelagos of states” would scuttle

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any chance of reaching an understanding with the major maritime powers. For this reason the Indonesians appealed to the Indians to abandon their plans but it was in vain. Equally alarmed by the Indian announcement were the Thais. Although delighted at the collapse of the Indonesian-Philippine initiative, they were even more concerned about the Indians’ announcement. As it was, they already regarded Thailand as a geographically disadvantaged state. This was only partly because ships traveling between the country’s east and west coasts had to pass through the waters of other states. In addition, the shape of the Gulf of Thailand meant that if the conference were to endorse the concept of a 200-mile economic zone Thailand would be entitled to only a relatively small zone in those waters and that any vessel travelling to or from a gulf port would have to travel through at least one other country’s economic zone. Now India was proposing to bring under national jurisdiction a long ribbon of waters straight across several of the sea lanes between Thailand’s west coast and the Indian Ocean. Once Burma proclaimed whatever maritime zones it would be entitled to under the convention Thailand would be entirely surrounded by waters under the jurisdiction of other states. The Thais would do whatever they could to block the Indians from getting what they wanted. At least in this respect they were now Indonesia’s allies. In the midst of these events the Indonesians gave the Philippine and Fijian delegations copies of the proposal the Americans had just presented in Jakarta. Rather than supporting the proposal as the Americans had expected, however, they simply floated it as a “trial balloon” to see how the Filipinos and Fijians would react. Just as the US ambassador to the Philippines had predicted, the Filipinos were offended that the Americans had approached Indonesia first, while the Americans, when they learned what had happened, began to wonder whether the Indonesians might prove to be less cooperative than they had hoped. Cooperative or not, the Indonesians wanted to hold further talks with their Philippine and Fijian counterparts before committing themselves to anything. They suggested that perhaps an Indonesian delegation might visit Manila and Suva for consultations. The Filipinos were receptive but the Fijians offered little encouragement. Nandan told them that they were welcome to take this initiative but emphasized that the Fijian delegation always acted on instructions from its government. He also told them that Fiji was unlikely to agree to any passage regime that was more restrictive than the one it currently supported if insistence on such a regime risked undermining support for the archipelagic concept.21 Indeed, the government in Suva was keeping a close eye on developments. Immediately after the G77 meeting Nandan flew to Suva to brief a meeting chaired by the country’s secretary for foreign affairs. The main item on the agenda was the US proposal on archipelagos and straits. Those attending the meeting, among whom was McLoughlin, welcomed the position the US was now taking on passage. It was, after all, not very different from Fiji’s. But they

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were extremely worried about the proposed definition of an archipelagic state. Although the proposal would allow “archipelagic lines” as long as 80 miles, it retained the same minimum land-to-water ratio, 1:5, that the UK had proposed the previous year. The Fijians were extremely worried that Fiji would fail to meet this criterion, especially since the US proposal made no mention of regarding the water inside atolls as land for the purpose of calculating the ratio. This worry led to a discussion of tactics. They were tempted to abandon their association with Indonesia and the Philippines because of their much tougher views on passage. Taking this step, however, created the risk that the US would do some sort of deal with Indonesia and the Philippines that would leave Fiji with nothing. They therefore decided that they would continue to work as closely as they could with Indonesia and the Philippines. They would leave it to the Americans to try to persuade Indonesia and the Philippines to adopt a more liberal passage regime. At the same time they would use their alliance with Indonesia and the Philippines to persuade the US to make sure that whatever criteria were eventually decided on Fiji would qualify as an archipelagic state. The most immediate task was simply to gain a clearer idea of what the Americans had in mind. Thus it was agreed that Nandan would seek a meeting with Moore and Hodgson as soon as he returned to his post in New York.22

AFTERMATH Following the US initiative and the G77 meeting the Indonesian government hurried to prepare for the next round of talks with the US. One of the most pressing tasks was to hold further consultations with the Fijians and Filipinos. When the government tried to arrange a meeting in Suva it was told that they should meet with Nandan in New York. But it quickly arranged for Djajadiningrat to lead a delegation to Manila at the end of April. At that meeting, Djajadiningrat later told Newsom, the Filipinos highlighted two objections they had to the US proposal. First, they regarded the formula for defining an archipelagic state as “arbitrary”. In order for the Philippines to qualify as an archipelagic state, they told Djajadiningrat, the maximum length of baselines would have to be increased to 100 miles and the minimum land-to-water ratio would have to be decreased to 1:7.3. Second, they believed that archipelagic states should have the right to require “non-commercial” vessels to give notification before passing through their waters. But beyond what Djajadiningrat characterized as a “fruitful exchange of views” the meeting achieved nothing. One problem was that the Filipinos believed that they had already conceded a great deal by agreeing to sea lanes and were not prepared to consider making any more concessions before they had spoken directly to the Americans. Another was that they believed that there was little likelihood that the Caracas session would achieve much.23 In his conversation with

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Newsom Djajadiningrat papered over the differences between Indonesia and the Philippines. At a diplomatic event a few days earlier, however, he told Newsom’s deputy that these differences were so great that he doubted the archipelagic states would be able to reach agreement on their response to the US proposals before the Caracas session.24 Likewise, at the end of May Indonesian negotiators described the Philippine stance as “hard line”.25 A few days after this meeting Satya Nandan met with Moore and Hodgson in Washington. Nandan’s main mission was to seek their assurance that the US would not agree to any formula that would not cover Fiji’s special case. Moore and Hodgson were quick to give him such an assurance. Hodgson’s research showed that Fiji would be fully enclosed with baselines that were no more than 80 miles long (he suggested that the Fijians may have been using statute rather than nautical miles in their calculations) and would have a land-to-water ratio more than 1:5 as long as atolls were regarded as land for the purposes of this calculation.26 Nandan responded that as long as its own calculations confirmed Hodgson’s Fiji would be able to accept the US formula. He then suggested that there could now be an agreement on an “objective definition” but Moore rejected this out of hand. The US, he told Nandan, insisted on agreement on all the elements of the archipelago-straits package it was trying to obtain before it could support the archipelagic concept.27 Overriding everything was the Americans’ determination to maintain the maximum possible mobility of their strategic forces. Sometime during this meeting Nandan made a startling discovery. US negotiators had over the previous few weeks been referring to the straight lines joining the outermost points of an archipelago first as “archipelagic lines” and then as “archipelagic construction lines” rather than as baselines. They had, it now turned out, been deliberately avoiding this term because as far as they were concerned the territorial sea would not necessarily be measured from the lines. Indeed, the territorial sea would be measured from these lines only when they were less than a certain length that they apparently had not yet determined. Nandan told Moore and Hodgson that measuring the territorial sea from the straight baselines that joined the outermost points of the archipelago was fundamental to the whole concept of an archipelagic state. He assured Moore and Hodgson, however, that whatever regime was devised for passage through the sea lanes running through archipelagic waters would also apply to passage through the territorial sea lying between the ends of those sea lanes and the high seas. The Americans said nothing at this point about whether the US would reconsider this aspect of its proposal.28 While this meeting was quietly taking place in Washington, President Suharto was meeting with the Malaysian prime minister, Abdul Razak bin Hussein, in Penang. Along with several other issues including Malaysia’s intention to establish diplomatic ties with the People’s Republic of China the two leaders discussed the upcoming law of the sea conference. They agreed that Malaysia would support Indonesia’s push to gain recognition of the archipelagic concept “in return for

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‘assurances’ that transit between peninsular Malaysia and Sarawak would be unimpeded”.29 They did not reach agreement, however, on what form these assurances should take. According to a US source, Razak told Suharto that Malaysia would not be satisfied with verbal assurances. Malaysia wanted not only a bilateral agreement but also a special provision in the convention that would deal with states in Malaysia’s situation, even though its situation was apparently unique.30 At this point Suharto was not prepared to commit Indonesia either to a bilateral agreement or to supporting a special provision. Either at this meeting or very shortly afterwards, however, he arranged for Mochtar to go to Kuala Lumpur to hold further discussions with Malaysia’s attorney-general. Just a few days after the meeting between Suharto and Razak a meeting of ASEAN foreign ministers in Jakarta discussed many of the same issues that the two leaders had discussed. In many respects this meeting was a success. In particular, the ministers agreed that they should establish a headquarters for the organization in Jakarta and take the first steps towards creating some sort of free trade zone among the member states. But in one respect the meeting was an embarrassing failure. At some point the Filipinos asked the other ministers formally to endorse the archipelagic concept. The Thais and Singaporeans refused, while the Malaysians apparently tried to stay out of the fray. The Indonesians, who were extremely conscious of how sensitive all their neighbours were on this matter, calmed the situation by suggesting that now was not the best time to discuss the issue.31 The statement that the ministers issued to the press after the meeting merely reported that the “ministers discussed matters related to the forthcoming…conference and with a view to broadening areas of agreement, decided to remain in close consultation…in keeping with established ASEAN practice”.32 When he returned to Singapore Rajaratnam said, just as Lee Kuan Yew had the previous year in relation to Indonesia’s claim, that Singapore acknowledged how important the archipelagic concept was to Indonesia and the Philippines but officials within his ministry again emphasized that this in no way implied acceptance of the concept.33 One senior official described the Philippines initiative as “stupid”.34 Just a week after this meeting Mochtar, who was then acting foreign minister as well as the justice minister, met with the Malaysian attorney-general to take up discussions where Suharto and Razak had left off. Indonesia took another step towards easing Malaysia’s concerns. “Malaysia will support [the] archipelago concept of Indonesia,” it was agreed, “on condition there is [a] guarantee that Malaysian ships and planes can transit unimpeded under all circumstances from West to East Malaysia.” Mochtar assured the attorney general that “it would be very easy for Indonesia to provide such a guarantee”. Nevertheless, they did not reach agreement on just what form this “guarantee” would take.35 There would have to be further talks, this time at the level of senior officials. By this time the Indonesian government had made the final arrangements for a series of meetings in the lead-up to the Caracas session. Sudarmono was to lead

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a delegation that would meet first with the Soviets in Moscow on 27–28 May, then with Nandan in New York on 29 May and the Americans in Washington on 31 May and 1 June, and finally with British officials in London. Accompanying Sudarmono were Djalal, serving as the delegation secretary, senior officials from the foreign affairs, mines, justice, and communications departments, an admiral, and the ever-present Colonel Trihardjo.36 In the days before the Indonesians arrived in New York Nandan scurried to shore up Fiji’s bargaining position. He rang Nordquist to tell him that “Fiji could be very helpful” in working with Indonesia and the Philippines to arrive at a navigation regime acceptable to the US if Fiji could be certain that any definition of an archipelagic state included Fiji. He wanted to reduce the minimum land-to-water ratio to 1:7.5 to ensure that Fiji would be included even if the waters inside atolls were not regarded as land for the purposes of the calculation. He was worried that regarding atolls as land would give opponents of the archipelagic concept an excuse to oppose it. In fact, he proposed that the maximum length of the straight lines between the outermost points should be increased to 100 miles and the minimum land-to-water ratio reduced to 1:10. Making these changes, he said, would not result in the inclusion of any more states as archipelagic states. On instructions from Moore, Nordquist rang back a few days later to assure Nandan that Fiji would be covered by the definition proposed by the US and that the other maritime powers had no problem with the idea of regarding the waters inside an atoll as land. Nordquist told Nandan that any change to the criteria might result in opposition to the archipelagic concept.37 Nandan was still not satisfied. He told Hodgson that he would “tell [the] Indonesians that he has no problem with [the] navigational aspects of [the] US proposals” but Hodgson was unable to dissuade him from telling the Indonesians that he would prefer a 1:10 ratio. He still feared that regarding the waters inside atolls as land was more likely to provoke opposition to the archipelagic concept than changing the ratio would. He was particularly wary of resistance from African states.38

TO WASHINGTON VIA MOSCOW AND NEW YORK The main purpose of the Indonesians’ mission was to respond to the proposals the US delegation had handed them in March. For this reason they treated the talks with the Soviets and Nandan as preparation for the main event in Washington. Rather than give the Soviets their current position on the question of archipelagos they used the draft articles Indonesia, the Philippines, Fiji, and Mauritius had submitted to the Seabed Committee as the basis of discussion. They agreed with the Soviets that there should be a more specific definition of archipelagic states but declined to go into any specific proposals, declaring that they would first need to consult with the other three archipelagic states. They restated their view

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that passage through sea lanes should be subject to the innocent passage regime, that military ships should give prior notification, and that submarines would be required to transit on the surface. In keeping with the position they shared with the US and the other maritime states, the Soviets insisted that all ships passing through sea lanes must have unimpeded passage. They also insisted that Indonesia support freedom of navigation through straits used for international navigation.39 The delegation’s meeting with Nandan and his colleagues in New York focussed primarily on the question of a definition of an archipelagic state. As he had indicated to Hodgson, Nandan told the Indonesians that he was still very worried that the definition proposed by the US might not cover Fiji. For their part the Indonesians told the Fijians that a provision requiring baselines to be no more than 80 miles long would not satisfy Indonesia. Indeed, they said, one baseline had to be 122.7 miles long. When it came to discussing the question of a passage regime, Nandan reported, “the Indonesians were not too forthcoming” during the meeting. During lunch, however, Sudarmono told Nandan that Indonesia was moving closer to Fiji’s position on passage. Nandan “assured him that if they should take such a move Fiji will support them in the archipelagic group”.40 Having revealed little to the Soviets and Fijians, the delegation moved on to Washington to resume consultations with John Norton Moore and his team, which again included Robert Hodgson and Admiral Morris.41 The two sides moved somewhat closer on the question of how to define an archipelagic state. When the Indonesians pointed out that they would have to have four or five straight lines more than 80 miles long, the Americans proposed that 1 percent of the lines could be up to 100 miles long. This would give Indonesia only two lines longer than 80 miles and of course none longer than 100 but the Indonesians did not dwell on this problem, fundamental though it was. At the very least the Americans were showing a welcome flexibility. The two teams differed over what to call the straight lines. The Americans had been referring to them as “archipelagic lines”. The Indonesians preferred to call them “archipelagic baselines” to emphasize that the territorial sea and other zones were to be measured from them. The Americans responded that the US government probably would be prepared to accept this terminology as long as its concerns about passage were satisfied. In any case, they accepted the notion that the territorial sea and any economic jurisdiction would indeed be measured from these lines, whatever they were called. Moreover, they explicitly agreed that subject to the passage regime the archipelagic state would have sovereignty over their “archipelagic waters”. The real sticking point remained the question of passage. The two parties had already agreed that there would be some special regime for passage through the archipelago along certain defined passageways but not on what to call them, how wide they should be, or the precise nature of the regime that would apply to passage. They settled the first of these questions very quickly. As Mochtar had mentioned to Moore in March, the Indonesians had serious

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concerns about the term “passage areas” but the Americans now agreed to call them “archipelagic sealanes” instead. There was no such quick agreement on how wide these sea lanes should be. The Americans wanted the sea lanes to be whichever was the narrower of 100 miles or 80 percent of the distance between the nearest islands. Though they gave the Americans the impression that they could be flexible on this point, Indonesians wanted the sea lanes to be whichever was the narrower of 10 miles or 80 percent of the distance between the islands. Thus, under the American proposal a sea lane running between two islands that were 110 miles apart would be 88 miles wide while under the Indonesian proposal it would be only 10 miles wide. A sea lane running between two islands that were 11 miles apart would be 8.8 miles wide under both proposals. According to the Americans’ notes, the two teams agreed that the sea lanes—however wide they were—should include “all normal passage routes” but, as we shall see, this was not reflected in the Indonesians’ notes. What is certain is that the Indonesians did not agree to the US proposals concerning the passage regime that would apply to the sea lanes. Nevertheless, Moore reported that they “strongly hinted” that they would accept “submerged transit without notification in straits and archipelagic waters if [an] accommodation [is] reached”. For their part, the Americans said the US would be willing to accept a provision that would allow the archipelagic state to require vessels or aircraft that departed from an archipelagic sea lane as a result of “force majeure, distress or other circumstances” to provide notification. In addition, reflecting just how far the US government was prepared to go at this stage, they said the US would consider whether this principle could be extended so that vessels and aircraft could be required to obtain authorization before departing from an archipelagic sea lane for some reason other than force majeure or distress. The single most contentious aspect of the passage regime proposed by the US was the inclusion of aircraft. The Indonesians continued to insist that aircraft should be the subject of the law of the air rather than the law of the sea. They emphasized the danger that the overflight of military aircraft posed to the states they flew over. They gave the Americans the impression that “even in [this] area [the] team wanted to be accommodating but…lack[ed] [the] authority to move as quickly as [the] U.S. proposed”. Nevertheless, Moore observed, the Indonesians “clearly viewed” this issue as the “greatest problem in [the] passage regimes sought by the U.S.”42 During the consultations the teams also discussed the question of safeguarding the interests of neighbouring states in archipelagic waters. The US of course had no direct interest in this issue but resolving it was vital to finding consensus on archipelagos. The Americans and Indonesians agreed that both governments would study the possibility of including in the convention a provision that would deal with this matter. Any such provision would, they agreed, have to be “consistent with the sovereignty of the archipelagic state”.

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The Americans had hoped that the meeting would end with the two sides agreeing on notes that would set out explicitly the points they had agreed on and the areas where they still needed to negotiate. Either because they were (as the Americans suspected) surprised by how far the talks had gone or because they wanted to reflect on the talks the Indonesians were unwilling to do this. Instead the two sides agreed to exchange notes on the matters they had discussed. Moore agreed, apparently at Sudarmono’s request, that when he and his colleagues travelled to Manila they would not reveal to the Filipinos the views the Indonesian delegation had expressed in Washington. Immediately after these consultations the Americans revised the proposal they had presented to the Indonesians in March. For the most part the revisions reflected the concessions they had made during the consultations. Thus, the revised proposal explicitly recognized an archipelagic state’s sovereignty over the waters, seabed, and airspace inside the “archipelagic baselines”, subject only to the passage regime; referred to “archipelagic sealanes” rather than “passage areas”; made it clear that the territorial sea would be measured from archipelagic baselines; and made it possible for 1 percent of those baselines to be more than 80 miles long as long as they did not exceed 100 miles. The proposal also contained one more provision that the Indonesians had apparently suggested even though neither they nor the Americans referred to it in their accounts of the consultations.43 According to this provision, the area of water inside a state’s archipelagic baselines had to be greater than the area of land. Thus, the land-to-water ratio would have to be at least 1:5 but no more than 1:1. The effect of this provision would be to make it impossible for island states such as Cuba, Ireland, Japan, New Zealand, Trinidad and Tobago, and the UK to claim archipelagic status. At the same time, however, the Americans removed the requirement that the system of archipelagic baselines had to include all of the state’s islands in order for it to qualify as an archipelagic state. This revision was mainly aimed at accommodating Fiji. Having made these changes, Moore and a number of his colleagues flew to Manila for consultations with the Filipinos. Exactly what happened at this meeting is unclear, since the State Department has not released the delegation’s account of the discussion.44 Shortly afterwards, Moore, who was doing everything within his power to reach agreement as quickly as possible, asked Newsom to tell Sudarmono that he was “greatly encouraged” by the talks in Manila.45 Likewise, he told Nandan that he was “encouraged” by how the US proposal had been received in Manila as well as in his talks with the Indonesians and of course the Fijians.46 Almost certainly, however, the meeting went badly from the American point of view. Other documents from this time show that the Filipinos were very unhappy with the US proposal.47 They were generally satisfied with the proposed criteria for an archipelagic state. They wanted one line longer than 100 miles in order to draw a line straight across the Moro Gulf, where, they believed, Muslim insurgents were landing weapons, but, it appears, were confident a way would be found to get around this problem. They

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were, however, extremely dissatisfied with the passage regime proposed by the US. They regarded the agreement that they had reached with the other archipelagic states that foreign ships would have the right of innocent passage when sailing along sea lanes as a major concession on the part of the Philippines. They had serious misgivings about conceding any more. Allowing unimpeded passage of foreign ships contradicted their conception of the waters inside the straight baselines as internal waters. They objected strongly to the idea that the sea lanes would be open to all foreign ships. They objected just as strongly to the proposed 80 percent rule. The US proposal in effect stipulated that whenever a sea lane ran between two islands that were closer to one another than 125 miles the sea lane would occupy 80 percent of the space between those islands. Since the islands making up the Philippines are so close to one another, the combination of the 80 percent rule and the proposal that all normal shipping routes would be designated as sea lanes would mean that virtually all of the waters inside the country’s straight baselines would be open to ships of all nationalities. Such a result would, they believed, undermine the sense of national unity the government was trying to instil in the people. In addition to all this, the Filipinos were puzzled why the US was so eager to enshrine in an international convention the right of foreign ships to pass through Philippine waters when US ships already had that right under bilateral security agreements. Just how far the Filipinos were prepared to go at this time to uphold their views is unclear. Perhaps, as the Americans suspected, they wanted to see how much the Indonesians achieved before considering making concessions. At the same time, however, they appeared to be genuinely disturbed by the US proposal. What was certain was that, whatever their intentions, they constituted one of the biggest stumbling blocks in the way of an agreement on the question of archipelagos. Immediately after the consultations in Washington the Indonesian delegation had flown on to London for talks with British officials before heading home to Jakarta. On 10 June Newsom called on Sudarmono to deliver the Americans’ notes on the consultations and their revised proposal. Sudarmono in turn promised to deliver to the ambassador his account of the consultations as soon as possible. When Sudarmono asked whether the US-Philippine consultations had gone satisfactorily, Newsom, true to his instructions, told him that the US was “encouraged” by the talks in Manila, emphasizing that the US team had not discussed the Indonesian’s views there. For his part, Sudarmono described the talks his team had had with the Americans as “fruitful” and those with the Fijians as “successful” (he told Newsom that “Fiji will go along with Indonesia’s views” on the question of archipelagos). Those with the Soviets were, at least so he told Newsom, “less successful”; he expected that they would oppose certain aspects of Indonesia’s position. He asked Newsom to tell Moore that the talks in London had been “satisfactory”. “He will know what I mean,” he added.48 By this point Sudarmono was developing a rapport with the Americans.

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On 13 June Sudarmono gave Newsom his notes on the Washington meeting. Addressing the question of how to define an archipelagic state, the notes neatly sidestepped the gap between the two sides regarding the length of archipelagic baselines: they stated that Indonesia would accept a maximum of 80 miles “with some exceptions” but did not specify precisely what those exceptions would be. On one important point the notes overstated what the US had conceded. It was not true, as Sudarmono recorded, that the Americans had actually accepted the principle of authorization for vessels and aircraft that passed through archipelagic waters outside a sea lane. At the same time, the notes suggested in relation to another important point that the Indonesians had conceded somewhat less than the Americans had thought they had. The Americans’ notes imply that there was an understanding that the sea lanes would include all the normal navigation routes on a chart the two teams referred to in Washington. Sudarmono’s notes proclaimed that Indonesia’s position was that the designation of sea lanes would be determined entirely by the archipelagic states “taking into account the specific interests of the archipelagic states”. In one crucial respect, however, the Indonesians were now prepared to go much further towards accommodating the maritime powers than they had been in Washington. In Washington they had “strongly hinted” that they would not demand that warships provide notification before passing along a sea lane. Now, according to Sudarmono’s notes, Indonesia explicitly agreed to the following principle: If the principles of archipelagic states are codified satisfactorily in the next convention on the law of the sea, Indonesia is prepared, without prejudice to her sovereignty over all archipelagic waters, to provide sealanes for international navigation and not to require notification for non-commercial vessels or surface passage for underwater vehicles, with the understanding that such passage will not [be] inimical or endangering Indonesian security. However, this principle did not apply to aircraft. Moreover, Sudarmono backed away from any impression the Indonesians may have given that they would be willing to apply the same principle to straits used for international navigation. Indeed, Sudarmono wrote, “Indonesia does not feel itself free to talk on the problem of passage” through such straits “because, as far as the Straits of Malacca and Singapore are concerned, it also involves its most immediate neighbors, Malaysia and Singapore”. Thus there remained a number of important areas where Indonesia and the US were yet to reach agreement. Sudarmono noted that the two teams had agreed to consult again during and after the Caracas session to reach agreement on the question of archipelagos and straits.49 In his notes Sudarmono emphasized that the Indonesian position was subject to consultations with the other archipelagic states. Otherwise it appeared that

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the notes represented the considered position of the Indonesian government. It soon became apparent, however, that this was not entirely true. The Mines Department expressed grave concerns about the way Sudarmono had worded Indonesia’s position on the width of sea lanes. “The width of the sealanes,” he had written, “should be sufficiently large for safety of navigation while in transit, and in this regard Indonesia agreed with the width of 80 percent of the waters between the island[s] or 10 nautical miles, whichever is the lesser.” The department feared that this wording would “preclude [the] full utilization of seabed resources”. They were particularly worried that this would be the case in the Sunda Strait, where because of the narrowness of this waterway the 80 percent rule would come into effect and as a result, if the wording in Sudarmono’s notes were incorporated into a convention, it would, so the department believed, be impossible to develop oil and gas resources. But what exactly was the status of these notes? When Mochtar raised the problem posed by the 80 percent rule with Sudarmono, Sudarmono replied (so Mochtar told Newsom) that the notes “were only tentative and did not represent [the] official GOI position”. Now, it appeared, the understandings that the Indonesians and Americans had reached in Washington stood on very shaky foundations. Also in doubt was the question of who was in charge of Indonesia’s law of the sea negotiations. Mochtar, the justice minister as well as the person who had first conceptualized Indonesia as an archipelagic state, had been named to lead the Indonesian delegation to Caracas. At the same time, however, Sudarmono, the military officer then serving as chairman of Pankorwilnas, the body responsible for coordinating the government’s policy on territorial questions, had, as we have just seen, been responsible for the crucially important negotiations with the Soviet Union, US, and UK over the previous few months. Mochtar was extremely unhappy about this arrangement. In his view military officers lacked the expertise required to conduct such complex negotiations. Moreover, they were rotated too often to provide continuity—Subono had held the post of chairman of Pankorwilnas less than two years and Sudarmono had at that point held it for just a year. Mochtar told Newsom that the wording regarding sea lanes in Sudarmono’s notes demonstrated the folly of entrusting such negotiations to military officers. He therefore proposed to the defence and foreign ministers that after the Caracas session he should take over the role of coordinating law of the sea matters. This shift in responsibility was, he informed Newsom, “agreeable to all”,50 including, so he implied, Sudarmono. *** As these events unfolded the government announced the delegation that Mochtar would lead at the Caracas session, which had already begun on 20 June. The delegation would have four deputy leaders: Anwar Sani, Indonesia’s permanent

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representative to the UN in New York; Sudarmono; Djajadiningrat; and Abdullah Kamil of the Foreign Ministry. The delegation’s secretary would be Hasjim Djalal. The other members were four officials from the Foreign Ministry, including Nugroho Wisnumurti; officials from the agriculture, mines, and justice ministries; a representative of Pertamina; and, representing the Department of Defence and Security as usual, Colonel Trihardjo.51 Not all of these delegates planned to attend the entire session. In particular, neither Mochtar nor Sudarmono would arrive until early July. This news alarmed both John Stevenson, who was leading the US delegation, and Satya Nandan, since it meant that any negotiations on the question of archipelagos would almost certainly be handled on the Indonesian side by Djalal until Mochtar and Sudarmono arrived. According to Stevenson, Nandan, expressing opinions that Stevenson already held, “emphasized [that] Mochtar [is] ‘reasonable’” and mentioned that Sudarmono had been “particularly forthcoming in private conversations”. In contrast, Djalal was “more hard line and in [the] absence of Soedarmono or Mochtar his control of negotiations in Caracas could have [a] detrimental effect”. At Nandan’s urging Stevenson telegrammed the State Department enquiring whether Newsom could be asked to encourage Mochtar and Sudarmono to leave for Caracas as soon as possible.52 By this point Nandan, while steadfastly intending to hold on to his association with the Filipinos and particularly the Indonesians, was more anxious than ever to reach an accommodation with the US. Just a few days earlier Moore had agreed to put in writing his commitment that the US would not support any archipelagic articles that did not make it possible for Fiji to claim status as an archipelagic state.53 Mochtar and Sudarmono were still in Jakarta when, on 27 June, Indonesian and Malaysian officials met in Kuala Lumpur to flesh out the details of the understanding Mochtar and the Malaysian attorney-general had reached the previous month concerning Malaysian access to the waters between West and East Malaysia.54 It appears that sometime before this meeting, perhaps as early as Razak’s meeting with Suharto,55 the Malaysian government had asked for a special corridor for passage. Whatever the timing of events, the Indonesians now agreed to consider that request. There was a clear understanding on both sides that any such corridor would have to provide more rights than those associated with the innocent passage regime. Writing from a Malaysian perspective, B.A. Hamzah comments that the Indonesians “recognized that unless Malaysia’s traditional rights were guaranteed Malaysia would be unlikely to endorse the Indonesian doctrine”.56 The big question for the Indonesians was how to give Malaysia what it wanted without seriously undermining the sovereignty that Indonesia proclaimed over all of the waters delimited by Law No.4. Thus, as the Caracas session got underway the Indonesian delegation faced a large array of challenges. Malaysia, Thailand, and Singapore were all prepared to defend the rights they claimed to passage through Indonesia’s waters and access to fishery resources in these waters. The Republic of Vietnam refused to accept

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the legitimacy of Indonesia’s straight baselines in the South China Sea. India threatened to undermine the archipelagic states’ campaign by trying to extend the archipelagic principle to cover archipelagos belonging to continental states. The G77 was divided on the question of archipelagos. Though ready to negotiate on certain aspects of the archipelagic concept, the US was demanding that aircraft as well as ships have the right of unimpeded passage through archipelagos as a precondition for support for any archipelagic articles. Finally, the archipelagic states were themselves divided on how far to accommodate the maritime powers: the Fijians were prepared to go quite far and the Filipinos were if anything becoming more intransigent, while the Indonesians were trying to work out in just what direction to go. Such were the delegation’s challenges as the session began. Still, the Indonesians had come a long way in the past six months. They were at the very least engaged in serious negotiations with their neighbours and the US, and the archipelagic states, while divided on important issues, were making an effort to work together. Much could go wrong but there was reason for optimism. In any case, the Caracas session represented the government’s most important opportunity yet to further its cause.

CHAPTER 11

Caracas 1974 Caracas 1974

“The aim of the Conference,” declared the conference president, H.S. Amerasinghe, as he opened the Caracas session on 20 June 1974, “was to establish a new international legal order to regulate the use of the oceans and their resources and to give the world an international law of the sea which would ensure justice and equity for all peoples.” There were high hopes that the conference would fulfil this aim. The UN secretary-general, Kurt Waldheim, expressed his confidence that the conference would seize the great opportunity it had been given, while representatives of the various regional groups of delegations pledged their full cooperation in achieving the conference’s objectives.1 Before they could get down to the task of crafting a convention, however, the delegations had to take care of the unfinished business of finalizing the rules of procedure. After a week of intense wrangling they agreed on rules that gave practical effect to the gentleman’s agreement. The most important of these rules, intended to allay the superpowers’ fears that they could easily be outvoted by the newly independent states, were designed to avoid or delay voting on substantive issues until every possible effort had been made to achieve consensus. The hope was that the conference would not vote on any draft articles until at the very end it “adopt[ed], by consensus if possible, one gigantic ‘package deal’ covering the whole area under discussion”.2 Many delegations, particularly those in the G77, had misgivings about the rules. Reflecting the spirit of goodwill that prevailed at this time, however, on 27 June the conference accepted the rules of procedure without a formal vote. Having finally agreed on the rules of procedure, the conference began a series of plenary meetings during which delegations presented their countries’ positions on the law of the sea. The original plan was to devote just six days to hearing formal statements from various delegations, particularly those that had not taken part in the Seabed Committee, before the focus shifted to the work of the three main committees. As it turned out, the great majority of delegations participating in the conference, including most of those who had taken part in the Seabed Committee, took the opportunity to state their positions.3 247

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Many of these statements highlighted problems the Indonesians already knew they faced. The Indian representative declared that India would support the archipelagic concept provided that the Andaman and Nicobar Islands and the Lakshadweep Islands would “be entitled to the same status as any other archipelago”.4 The Thai, Singaporean, and Malaysian delegates all emphasized that the convention must recognize the rights of states neighbouring an archipelagic state to transit through its archipelagic waters and access to resources in those waters. “[B]y an accident of geography,” the head of the Malaysian delegation, Abdul Kadir Yusuf, declared, referring to Indonesia’s system of straight baselines as if they had not already been enshrined in national law, “the furthering of Indonesian unity” by means of the archipelagic concept “would divide West and East Malaysia.”5 Something would have to be done to overcome this problem. As for the maritime powers, they all stressed the necessity of maintaining freedom of navigation in straits used for international navigation. While expressing confidence that some way could be found to accommodate the interests of archipelagic states, the Australian, British, French, and Japanese representatives emphasized the importance of maintaining transit rights through archipelagic waters. The US and Soviet representatives did not refer to archipelagos at all. Finally, the Philippine delegate emphasized that the principle that the waters inside his country’s system of straight baselines had the status of internal waters was entrenched in the Philippine constitution.6 The implication was that the Philippines would never—indeed, could never—budge on this principle. None of this was new to the Indonesians. Some of the other statements, however, added to the long list of problems the Indonesians would have to deal with. India, it soon became clear, was not the only continental state considering applying the archipelagic principle. Referring to the Arctic archipelago as “a classic example of a special area requiring special treatment”, the Canadian delegate declared that “Canada…was an archipelagic State”.7 In addition a number of states made up entirely of islands declared their intention to follow in the footsteps of the group of four archipelagic states. One of these, the Bahamas, posed a particular problem since it consisted of many relatively small islands spread over a very large area of sea. That meant that if the Bahamas were to qualify as an archipelagic state any definition of such a state, specifically, any limitation on the ratio between land and water, would have to be relaxed to accommodate its special circumstances. Suddenly the task of defining an archipelagic state had become even more complicated. The presentation of general statements continued for more than two weeks until 15 July when Mochtar, who had arrived only a few days earlier, addressed the conference.8 In keeping with its importance to Indonesia Mochtar devoted most of his address to the question of archipelagos. Repeating arguments that Indonesian representatives had used at the Geneva conferences and in the Seabed

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Committee, Mochtar spoke of the inherent unity of Indonesia’s land and water and the government’s need to have jurisdiction over the waters between the country’s islands. He emphasized that under Indonesian law those waters were a sovereign part of Indonesia. He saw no particular need for an “objective” definition of an archipelagic state but said Indonesia was prepared to accept specific criteria “as long as these criteria meet the requirements of Indonesia and other archipelagic States”. He declared that the government had never hindered the passage of ships through Indonesian waters but insisted on the need for a separate regime for warships. That regime could take the form of special sea lanes. But Mochtar said nothing about what that regime might look like. Indeed, even though he poured scorn on the claims of the superpowers that “the free and unhampered passage of [warships and submarines] is essential for the maintenance of global peace and security”, he gave the impression that he was trying to leave the Indonesians as much room as possible for some sort of future accommodation with the maritime powers. When he turned his attention to the question of straits he appeared less accommodating, reminding the conference that Indonesia was cosponsor of articles specifying that all ships would be subject to the innocent passage regime when passing through straits that were part of a state’s territorial sea. Nevertheless, he acknowledged that it might be necessary to develop “a more precise definition” of innocent passage. He made no reference to the question of overflight anywhere in his address. Likewise, he studiously avoided any mention of the problem posed by India and Canada. But he went out of his way to demonstrate Indonesia’s goodwill towards Malaysia, noting that the two governments had already reached an understanding “to recognize the special need of passage between West and East Malaysia”. Indeed, he made a point of emphasizing how successfully Indonesia had negotiated agreements with neighbouring states, noting that it had concluded boundary agreements with nearly all of its neighbours. The purpose of the conference was to come up with a package that gained nearly universal support. Unless the great majority of delegates were satisfied with the overall package there would be no convention. By the time Mochtar spoke certain elements of that package were beginning to emerge. There was widespread support for a 12-mile territorial sea and some sort of economic zone extending out to a maximum of 200 miles from the same baselines used to measure the territorial sea. But for two groups of states acceptance of these elements depended on acceptance of other elements as part of the package. The maritime powers would accept a 12-mile territorial sea but only if, as they had been insisting for some time, that was accompanied by recognition of the right of unimpeded passage through straits used for international navigation. They also insisted that foreign ships should have the same freedom of navigation in a state’s economic zone as they did on the high seas. A second group of states, the landlocked and geographically disadvantaged states (LLGDS), expressed their willingness to accept the concept of an economic zone but only if they were

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given access to resources in the zones of neighbouring coastal states. Otherwise, as they saw it, they would lose out in two ways. First, they would lose the freedom they had enjoyed to fish in waters beyond the territorial seas of coastal states. Second, because recognition of the concept of an economic zone would greatly reduce the area of seabed in waters lying beyond the jurisdiction of any state they would receive less revenue from the exploitation of that seabed under an international regime. Since the LLGDS constituted about a third of states at the conference, they had the potential to block any convention that they believed failed to meet their aspirations. The other states had to express their support for those aspirations even if in practice they were unwilling to concede much to the LLGDS. Mochtar therefore devoted part of his address to this broader context. Indonesia supported the concept of an economic zone, he said, without noting that because of its size and location it would gain one of the largest zones in the world. But he also called on the conference to do everything it could to accommodate the interests of the LLGDS. “My Delegation,” he declared, “recognizes that it is the vital interest of the land-locked countries that they have a right of access to and from the sea.” By the time Mochtar gave his address the Second Committee, by far the most important committee from Indonesia’s point of view since that was where debate on archipelagos, straits, passage regimes, and economic zones would take place, had held just two meetings. With the conclusion of the presentation of general statements the Second Committee, “very firmly and ably guided” by Andrés Aguilar,9 began meeting regularly, methodically dealing with one agenda item after another starting with the territorial sea before moving on to straits used for international navigation, the continental shelf, the economic zone, landlocked countries, archipelagos, and the regime of islands. During this period there were in effect two parallel conferences. The first consisted of the formal meetings of the three committees as well as of the conference in plenary session. The second consisted of a multitude of meetings between various delegations. Many of the meetings of this second conference were between like-minded delegations that had formed themselves into groups in the hope of working out a common position and furthering their interests in the formal proceedings. Indonesia was a member of several different groups of this sort.10 In addition to being a member of the group of four archipelagic states it was of course a member of the Group of 77 developing states, of which 103 attended the Caracas session. This group hoped to reshape the law of the sea in a way that reflected their economic and security concerns. The majority of its members had little sympathy for the maritime powers’ arguments in favour of the freedom of the seas. “Freedom of the seas…amounted more to licence than to genuine freedom of competition,” declared the Kenyan representative a few days before Mochtar expressed a similar view.11 The support of this group was vitally important to the

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Indonesians both because it had so many members and because the Indonesian government saw itself as one of its leaders on the world stage. Indonesia was also a member of the Group of Coastal States that included most of the coastal states taking part in the conference—developed as well as developing states—but not the major maritime powers. Among the leaders of this group were Canada, India, and Mexico. Indonesia was also a member of the straits states group made up of the eight states that had sponsored the draft articles that Mochtar referred to in his address—Cyprus, Greece, Indonesia, Malaysia, Morocco, the Philippines, Spain, and Yemen—and Oman. Finally, Indonesia belonged to the group of Asian states. This group was, however, one of the least effective groups at the conference because of the starkly different interests of Japan and developing states in the region, the conference-wide tension between LLGDS and coastal states, divisions within the group over the question of passage through straits, the competing interests of Indonesia and its neighbours, and the concentration of China’s delegates on attacking the Soviet Union. Among the many groups of which Indonesia was not a member several were of great importance to the work of the conference. One of these was the LLGDS group. This was a very cohesive group made up of both developing and developed states. A prominent member was Singapore, which because of its location not only had no direct access to the high seas but also would be unable to claim an economic zone. Another group was the territorialist group made up of states that had claimed territorial seas wider than 12 miles and indeed as wide as 200 miles in the case of several Latin American countries. The hope of other groups was that the territorialists would be satisfied with a 200-mile-wide economic zone. A group known as the margineers or broad-shelf group consisted of Australia, Canada, and other states that wanted the convention to allow them to exercise rights over continental shelves extending beyond 200 miles. Of special importance to Indonesia was the group of great maritime powers, the Group of Five, namely, France, Japan, the United Kingdom, the United States, and the Soviet Union. During this period John Norton Moore kept this group informed about the state of negotiations between the US and the archipelagic states. Finally, there was the group of maritime states that made up of the Federal Republic of Germany, Liberia, Norway, Panama, and Greece as well as the members of the G5. All of these groups held meetings during the Caracas session, though some much more frequently than others. As well as meetings of these groups there were also meetings between representatives of different groups and individual members of different groups acting on their own initiative and sometimes quite independently of groups to which they belonged. Of crucial importance to the Indonesians, as we shall now see, were meetings that they held with the US and Malaysian delegations. Particularly after Mochtar arrived in Caracas about 10 July the Indonesian delegation was engaged in a constant round of meetings of all sorts.

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GETTING DOWN TO BUSINESS Sometime in the middle of July the Indonesian delegation had one or more meetings with its three archipelagic partners. We have no record of these meetings but do know from various sources some of the points that the four delegations agreed on.12 First, they agreed that the convention should define archipelagos in a way that made it clear that the water between the islands was as much a part of an archipelago as the islands. This was in keeping with a point that Mochtar made during his statement—and that Indonesians had been making since 1958—that an archipelago was a “sea studded with islands”. Second, they also agreed that an archipelago could include parts of islands. This was to overcome any suggestion that, say, the entire island of Borneo, Timor, or New Guinea belonged to the Indonesian archipelago. Third, they decided that the Indonesians should tell the US delegation that the archipelagic states would accept a minimum land-to-water ratio of 1:7 and 100 miles as the maximum length of straight baselines (simply called “baselines”) provided that up to 5 percent of those lines could be as long as 150 miles. These criteria were of course much less restrictive than those proposed by the US.13 Finally, the archipelagic delegations agreed that any articles on archipelagic states should include one dealing with the Malaysians’ concerns about the waters between West and East Malaysia.14 At the same time, the Indonesian delegation took part in several meetings of the Group of Coastal States. At some point this group decided to take it upon itself to submit a working paper containing draft articles on many of the issues that the conference was dealing with in the hope of crystallizing discussions and speeding up negotiations. Among these articles were articles giving coastal states the right to have a territorial sea up to 12 miles wide, an exclusive economic zone up to 200 miles wide, and continental shelves that extended out to 200 miles or “throughout the natural prolongation of its land territory where such natural prolongation extends beyond 200 miles”. There were also articles on archipelagos. It was agreed over the objections of the Indonesians that there should be one set of articles dealing with “archipelagos forming part of a coastal state” as well as another dealing with archipelagic states. One of the articles on “off-lying archipelagos”, article 9, gave states the right to apply to such archipelagos exactly the same provisions that applied to archipelagic states. Since those provisions did not place any limit on the length of straight baselines that might be drawn to enclose such a state, article 9 had the potential to transform into archipelagic waters large areas of the ocean that otherwise would have remained part of the high seas. Once the paper was completed the Indonesian delegation faced the dilemma of whether to agree to be one of its cosponsors. On the one hand the Indonesians had grave fears, as they had since the Nairobi conference, that any move by continental states such as India that had outlying archipelagos to enclose those archipelagos in straight baselines would derail their efforts to gain recognition of the archipelagic state

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principle. On the other, they needed all the support they could get for recognition of the special status of states such as Indonesia made up entirely of islands. They particularly did not want to alienate such an important state as India. In the end the Indonesians agreed to cosponsor the draft articles. The draft articles at least carefully distinguished, as the Indonesians always did, between archipelagic states and the archipelagos of coastal states. As if to ameliorate the risk Indonesia was taking in associating itself with these articles, one article declared that “the provision regarding archipelagos forming part of a coastal State shall be without prejudice to the regime of archipelagic States”.15 Even so, the Indonesian delegation knew it was taking a risk by associating itself with the articles. Indonesia and Mauritius were the only archipelagic states among the nine states that agreed to cosponsor the working paper. (The others were Canada, Chile, Iceland, India, Mexico, New Zealand, and Norway.) While all these discussions were taking place on the sidelines of the conference the Second Committee was deep in debate on straits used for international navigation. Much of this debate centred on draft articles on straits that the UK had submitted on 3 July. These articles created a new type of passage known as “transit passage”, which one article defined as “the exercise in accordance with the provisions of this chapter 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 and another part of the high seas”. This formulation thus enunciated a “freedom”, thereby implying an affinity to the passage regime prevailing on the high seas, but limited its exercise to “continuous and expeditious transit”. A further article set out in greater detail the obligations of ships and aircraft exercising “the right of transit passage”. Among other things they were required to “proceed without delay through the strait and…not engage in any activities other than those incident to their normal modes of transit” and to “refrain from any threat or use of force in violation of the Charter of the United Nations against the territorial integrity or political independence of an adjacent straits State”. In addition ships and aircraft were required to observe generally accepted international safety regulations and, in the case of ships, international regulations for the prevention of pollution. Discussing these articles in the Second Committee on 22 July, the British representative, Harry Dudgeon, explained that his delegation “had endeavoured to find a middle way…between the interests of the international community as a whole and the legitimate concerns of the straits States”.16 The Philippines steadfastly defended the innocent passage regime17 but a number of other states expressed interest in the UK’s proposal. Shortly after Dudgeon spoke John Norton Moore threw the support of the US delegation behind the draft articles.18 On 23 July, while the Second Committee continued the debate on straits, Mochtar, Hasjim Djalal, Abdullah Kamil, Nugroho Wisnumurti, and Trihardjo had a long meeting with the leading members of the US delegation, namely,

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John Stevenson, John Norton Moore, Max Morris, Robert Hodgson, and Bernard Oxman.19 Early in the meeting Mochtar told the Americans about the decisions the archipelagic states had made regarding the length of straight baselines and the ratio between land and water within those baselines. Moore, who did most of the talking on the American side just as Mochtar did for the Indonesians, expressed his disappointment that Indonesia would reopen issues that he said had already been agreed on. Apparently drawing on Hodgson’s work, he insisted that a maximum of 80 miles with 1 percent up to 100 miles “fully protected” all four archipelagic states. Rather than responding to this point Mochtar expressed his concern about the way the US tied its support to the archipelagic concept to Indonesian support for the US position on straits. As far as Indonesia was concerned, he said, they were two different issues. At this point Moore suggested that they discuss the question of overflight, which, he said, was critical to many other issues. When Mochtar argued that overflight should be considered under the law of the air rather than the law of the sea and suggested that Indonesia and the US put off discussion of this issue until after the conference, Moore declared that the “US will not accept any archipelago concept that does not provide overflight”. Mochtar agreed to give the matter further study. By this time both Mochtar and Moore were showing signs of exasperation. When Moore described the Indonesian view that sea lanes should be no more than 10 miles wide as “not a serious proposal”, Mochtar retorted that the US view that they should be 100 miles wide did not seem serious to him. They were making no progress. As if to bring matters to a head, Moore suggested that Indonesia might give a speech conditionally supporting the UK’s draft articles on straits. Moore was asking a great deal of Mochtar. In his speech just four days earlier Mochtar had reminded the conference of Indonesia’s cosponsorship of articles based on the principle that there should be no distinction between those parts of a state’s territorial sea that were part of a strait used for international navigation and any other part of that state’s territorial sea. Every part of a state’s territorial sea should be subject to the innocent passage regime. In keeping with this principle the articles cosponsored by Indonesia required submarines to travel on the surface. The UK articles contained no such requirement. In fact, the reference to “normal modes of transit” carried the clear implication that submarines would be able to transit submerged (their “normal mode”). There was another crucial difference. Also as a result of the principle that there should be no special treatment of those parts of a state’s territorial sea that might be part of a strait used for international navigation the articles cosponsored by Indonesia dealt exclusively with ships. There was no provision for overflight. In contrast, the UK articles created a right of transit passage that applied to aircraft as well as to ships. But, contrary though the UK articles were to the position the Indonesians had espoused up to this point, Mochtar apparently did not refer to these aspects of the articles when he responded to Moore. Instead, he said that he was confident that Indonesia and the US could

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eventually come to an agreement on the length of baselines and the width of sea lanes but that “it would be political suicide for Indonesia now to publicly support [the] UK straits articles”. Indonesia, he said, would be isolated. This was a significant moment. Mochtar rejected any public expression of support for the UK straits articles but he did not reject the articles themselves. Indeed, he pointed out to the Americans that the Indonesian delegation had been “considerably less vocal on straits” during this session than it had been in the past. He promised to discuss the question of overflight and the linkage the US was making between archipelagos and straits with the Indonesian government after he returned to Jakarta. The following day members of the two negotiating teams had a brief follow-up meeting at which the Americans emphasized the importance of an early decision on the question of overflight. The day after that, just two weeks after arriving in Caracas, Mochtar flew back to Jakarta. Sudarmono was expected to arrive in a few days to take over as leader of the delegation. The Americans had decided at this point, as their comments at the follow-up meeting indicate, to focus on the question of overflight. If they could get the Indonesians to accept overflight, they reasoned, that would make it much easier to resolve their other outstanding differences. Picking up on a suggestion that they said came from Mochtar, they asked the State Department to consider writing to the Indonesian government indicating that if Indonesia were to accept overflight as part of an archipelagic regime then the US delegation would be able to influence negotiations during the remainder of the session in Indonesia’s favour. This is precisely what the acting secretary of state, Robert Ingersoll, did in a letter to Adam Malik on 27 July. Accompanying this letter was a note to Ambassador Newsom setting out points that he might make to Malik when he delivered the letter. Newsom was to remind Malik that the official position of the US was still to oppose the archipelagic concept and to mention that unless there was some breakthrough in the negotiations the US delegation would be forced to come out in active opposition against the concept.20 Newsom appears to have delivered the letter, and this message, within the next couple of days. Back in Caracas, on 29 July the Canadian representative tried to introduce the nine-power working paper of which Indonesia was a reluctant cosponsor, A/ CONF.62/L.4, during a plenary meeting. This move infuriated many of those delegations that had had no part in drafting it and feared that introducing it could shape the conference agenda as well as many that believed that it should be debated in the Second Committee first. After the objectors lost a vote to stop the paper from being introduced, the Canadian representative was finally allowed to speak on its behalf. When, however, it appeared as if the other sponsors were lining up to speak as well, there was another uproar until Amerasinghe appealed to the other sponsors to save their comments for the Second Committee.21 The Indonesians’ worst fears appeared to have come true. The next day Hasjim Djalal tried to calm the waters during a meeting of the Second Committee. The working

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paper, he explained, had been drafted “with the genuine objective to help the conference with a general and an informal basis of discussion”. He noted that the sponsors had not shared the same position on all the issues in the paper but in the hope of contributing to the work of the conference “have shown their significant degree of goodwill in considering each other’s viewpoints”. Along the way Djalal distanced Indonesia from the articles dealing with archipelagos forming part of a coastal state without in any way criticizing those articles. He simply made the point that the concept of archipelagic states was distinct from that of archipelagos forming part of a coastal state, noting that they were dealt with in different chapters. Then, without missing a beat, he returned to his role as conciliator on behalf of all the cosponsors.22 The Indonesian delegation, it seemed, already had a myriad of problems to deal with as the conference continued into August. Then, on 5 August, the Malaysians made the delegation’s work even more difficult. During debate on the exclusive economic zone in the Second Committee the Malaysian representative, L.C. Vohrah, attacked the working paper on two fronts. First, he suggested that it would hardly be fair for a state made up of islands to bring under its sovereignty vast areas that had been previously been part of the high seas and then claim a 200-mile-wide exclusive economic zone. Second, he told the committee that Malaysia had “reservations” about some of the provisions in the working paper dealing with archipelagic states. One of these was article 6(2), which dealt with the problem that Malaysia faced in the waters between West and East Malaysia: “If the drawing of such baselines encloses a part of the sea traditionally used by an immediate and adjacent neighbouring State for direct communication from one part of its territory to another part, such communication shall continue to be respected.” Such a provision, Vohrah declared, failed to recognize the “serious problem” Malaysia faced. “The Indonesian archipelagic boundary as claimed would end the free access and communication, so vital for the maintenance of Malaysia’s geographical, economic and political unity, which his country had always enjoyed.” What Malaysia wanted was “a clear recognition and guarantee of all its existing rights of access and communication”.23 Vohrah was also critical of article 7, which he said seemed to contradict article 6. Article 7 emphasized the archipelagic state’s sovereignty over the waters enclosed within the baselines and declared that innocent passage “shall exist through archipelagic waters” without making any mention of the rights that Malaysia was insisting on. Later that day Djalal responded to the first part of Vohrah’s attack. He argued that the concepts of an economic zone and an archipelagic state were “of a different nature”. He then explained that even if Indonesia did not adopt the archipelagic concept “the area which would fall within the economic zone of an archipelagic State would necessarily cover all the areas within the archipelagic waters”.24 This indeed was the case. Thus, for example, Indonesia’s economic zone would cover all of Indonesia’s two largest seas, the Java and Banda seas, no point of which is more

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than about a hundred miles from one island or another. Djalal made no mention of the second part of Vohrah’s attack. It is very likely that the Indonesian delegation had already begun informal discussions with the Malaysians on the question of access to Indonesia’s archipelagic waters between West and East Malaysia. By this time the four archipelagic-state delegations were deep in discussions about their own draft articles on archipelagos. The problems created by the working paper gave added impetus to these discussions. Rather than give away too much at this stage they decided to retain most of the text of the draft articles they had submitted in August 1973. Thus, for example, they decided not to include any limitations of the length of straight baselines or the ratio between land and water, even though they had tentatively agreed to such limitations in their earlier talks. But the draft articles that they crafted (A/CONF.62/C.2/L.49) differed in some important ways both from that text and from the archipelagic state provisions in the working paper:25 1. Both the 1973 text and the working paper declared that “an archipelagic State is a State constituted wholly or mainly by one or more archipelagos”. A problem with this definition was that it suggested the possibility that a state that was partly continental could make use of the provisions. But deleting “or mainly” left the impression that the archipelagic state could not possess any isolated islands that were not part of an archipelago. The solution was to declare that “an archipelagic State is a State constituted wholly by one or more archipelagos and may include other islands”. 2. While the working paper had introduced the idea that the waters between the islands were an integral part of an archipelago, a deft editorial change now made that idea crystal clear: [A]n archipelago is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. 3. As the four archipelagic states were working on these draft articles the Indonesian delegation held “intensive consultations” with its Malaysian counterpart about an article that would satisfy Malaysian concerns about communications between West and East Malaysia.26 According to Djalal, the Malaysians agreed to the following draft article: If the drawing of such baselines encloses a part of the sea which has traditionally been used by an immediately adjacent neighbouring State for direct communication, including the laying of submarine

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cables and pipelines, between one part of its national territory and another part of such territory, the continued right of such communication shall be recognized and guaranteed by the archipelagic State. This article went much further than article 6(2) in the working paper in emphasizing the rights of a state such as Malaysia. The archipelagic delegations included it in their draft articles as article 2(5). 4. The archipelagic states also made what they regarded as a major concession to the maritime powers on the question of passage. The 1973 articles had merely stated that “innocent passage of foreign ships shall exist through archipelagic waters”, while the working paper had not dealt with passage at all. The archipelagic delegations now declared that, subject to other provisions, “ships of all States…shall enjoy the right of innocent passage through archipelagic waters”. 5. While willing to acknowledge innocent passage as a right, the Indonesians and Filipinos remained profoundly worried about the passage of warships, particularly submarines, through their waters. Presumably at their insistence the new articles allowed archipelagic states to “designate sea lanes suitable for the safe and expeditious passage of foreign ships through its archipelagic waters” and to “restrict the passage of such ships, or any types or classes of such ships, through those waters to any such sea lanes”. Restrictive though this wording appeared, it left open the possibility that foreign ships passing along a sea lane might enjoy greater freedoms than those sailing outside such a sea lane. In particular, they might not be required to give prior notification or obtain prior authorization, while submarines might be allowed to transit while submerged. But neither of these possibilities was made explicit. There was also no mention of just how wide the sea lanes would be. Nor was there any mention of overflight. The four delegations had settled on these draft articles by no later than 8 August. By that date there had been a major development in Jakarta.

A BREAKTHROUGH? As the conference moved into August the Americans were waiting impatiently for a reply to Ingersoll’s letter to Adam Malik. On 3 August Ambassador Newsom referred to the letter during a meeting with Suharto and gave him a copy of the letter. The president handed the letter to his state secretary, Sudharmono, and “nodded his understanding of [the] matter but made no comment”. Newsom was

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left with no idea of whether Suharto was already aware of the letter.27 When Newsom met Mochtar on 7 August he gave Mochtar a copy of the letter too. Although he said he had not seen the letter, he was aware of its contents. Indeed, presumably both he and Suharto had been aware of its contents when they met on 31 July, for when Mochtar met with Newsom he announced a policy shift that must have required the president’s approval. Mochtar reminded Newsom that Indonesia had already accepted the free transit of warships and submarines through archipelagic sea lanes.28 It had done so “not without some political cost in its relationship with third world countries”. Then Mochtar announced that Indonesia was prepared to accept free transit of straits and overflight of sea lanes at some point in the future. Specifically, it would be prepared to accept straits transit and overflight “when it can do so without destroying its position in the third world and thereby losing support for [the] archipelagic principle in that camp”. Mochtar predicted that as Third World states and straits states got more of what they wanted during the conference, or were paid off in other ways, they would drop their objections to free transit of straits and overflight. Then, and only then, would Indonesia be able to support free transit and overflight without suffering a “political backlash”, though even then it would be necessary to include a face-saving clause that would, for example, require passage to be “consistent with national interests”. Once Indonesia had accepted free transit and overflight, he said, it should then be easy to negotiate on the width of the sea lanes and any requirements concerning the altitude at which foreign aircraft would fly above sea lanes. The United States would then be in a position to support the archipelagic principle. Mochtar added, however, that Indonesia would be grateful if the US did not express its support too actively, as that would severely undermine Indonesia’s standing in the Third World. The assumption in all this was that Indonesia needed the support of the US and the other maritime powers. An alternative strategy for the Indonesians would have been to develop an archipelagic package that required fewer concessions on Indonesia’s part and then rely almost entirely on support from developing states to gain the votes they needed when it came time to vote on a convention. In this way they could get recognition of the archipelagic principle without the support of the US or USSR. Even though Newsom apparently did not refer to such a strategy Mochtar made a point of emphasizing that the Indonesian government did not have this in mind. It knew, he said, that any archipelagic articles would be meaningless without the support of the US. From the perspective of the US the crucially important point to emerge from this meeting was that the Indonesian government was prepared to give it virtually everything it wanted but not to do so immediately. In his report on the meeting Newsom appealed to the US government to be satisfied with the Indonesian offer. He feared that if the US delegation were to oppose the archipelagic principle at Caracas it would severely damage relations with Indonesia. He was sure that

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Suharto, “who makes policy on major issues such as this and is aware of concessions Indonesia has made”, would fail to understand why the US felt that it could not wait until a time more favourable to Indonesia. The matter was particularly pressing since the Second Committee would be debating the question of archipelagos in a few days. As it happened, the US government readily accepted Newsom’s appeal. The US delegation expressed great relief that it would not have to oppose the archipelagic principle. It would make its contribution to resolving the question of archipelagos by saying absolutely nothing during the debate.29 The US delegation had a meeting with its Indonesian counterpart, now being led by Sudarmono, who had arrived on 2 August, immediately after receiving a copy of Newsom’s telegram. The Indonesians had received no communication from Jakarta regarding the meeting between Mochtar and Newsom but showed little surprise when the Americans told them of their “understanding”. The Indonesians used the occasion to tell the Americans that the four archipelagic states were about to submit their draft articles and that while these were basically the same as their 1973 articles their statement introducing the articles would indicate the possibility of flexibility on the part of the four states. For their part the Americans assured the Indonesians that they would keep the “understanding” confidential “in view of Indonesia’s political problems” and announced their intention to remain silent during the upcoming debate.30

THE ARCHIPELAGOS DEBATE The Second Committee debated the question of archipelagos on 12 August. Hasjim Djalal led off the debate by introducing the draft articles. During his explanation of the differences between these articles and the 1973 articles he emphasized the willingness of the archipelagic states to accommodate the interests of other states. The sponsors of the articles were “reluctant” at this stage to accept a mathematical formula for drawing of baselines, since, he said, “that might result in arbitrariness and would defeat its own purpose”. However, they did not exclude the possibility of having such a formula. Djalal highlighted the “spirit of goodwill” that had led to inserting a provision intended to accommodate Indonesia’s neighbours. And he noted how the archipelagic states now acknowledged a right of innocent passage through archipelagic waters.31 Of course these articles were not the only articles before the committee. There was also the working paper which Indonesia had cosponsored as well. During the debate thirty-three delegations gave their views on one or the other or both sets of articles. Many of the delegates addressed the question of whether there needed to be strict criteria for defining an archipelago. Satya Nandan insisted that there was no such need, arguing that an archipelago was an archipelago if its islands, interconnecting waters, and other natural features formed an “intrinsic entity”.32

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Nandan noted that his country, Fiji, was made up of one such archipelago and three islands lying some distance from that archipelago. Most representatives of archipelagic states of course approached this question from a rather different perspective. Their starting point was the idea that all the islands, waters, and other natural features that belonged to the state formed an intrinsic whole. Any definition of an archipelago would be acceptable to them only if it allowed them to include all these elements within one single entity. In other words, the state defined the archipelago. The Pakistani delegate showed the best appreciation of this reasoning when he declared that “the organic unity of archipelagic States should be paramount; any criteria adopted should retain flexibility to meet peculiar geographical characteristics”.33 This was precisely the argument mounted by the Bahamian delegate. His delegation, he declared, would not accept any definition of an archipelago that would divide the Bahamas into several archipelagos, since “it wished to preserve the political and psychological unity of the Bahaman people”.34 No delegates tried to challenge such thinking. After all, this was a conference of representatives of nation-states. Nevertheless, many delegations insisted that there had to be some “objective” definition of an archipelago, for otherwise any group of islands could be deemed an archipelago. At the same time, however, none of these delegations was implacably committed to a particular definition. The Japanese delegate spoke in favour of the criteria proposed by the UK at the final session of the Seabed Committee but added that Japan would be prepared to consider “any reasonable limit if the facts bore out the view of the archipelagic countries that a 48-mile limit would not be sufficient”.35 Implicit in this statement was the idea that there would be some understanding about which archipelagos should meet the criteria so that the criteria could then be adjusted to allow those archipelagos to meet those criteria. Closely related to the matter of specific criteria was the question of whether those criteria should apply only to states made up entirely of islands or could also apply to archipelagos belonging to continental states. Opinion on this matter had hardened considerably since the various delegations had given their opening statements in the plenary meetings. The Indian delegate again made his country’s support for the archipelagic principle conditional on its application to India’s archipelagos. The French delegate declared that any attempt to distinguish between the islands belonging to the two different kinds of states would “threaten the sovereignty of some states while extending that of others over large portions of the sea”.36 The Portuguese view was that any distinction between the two kinds of states would mean that “the archipelagic part of the territory of mixed States would be regarded as second class territory”.37 Among the other delegations in favour of extending the archipelagic concept to archipelagos belonging to continental states were those of Spain, Ecuador, Peru, and Argentina. Throughout the debate the Indonesian, Fijian, Mauritian, and Philippine delegates steadfastly maintained their silence on this issue. Not wishing to challenge the Indians in particular, they merely

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made the point that their draft articles only dealt with archipelagic states. But there was no shortage of vigorous opponents of the view that archipelagos belonging to continental states should be treated the same as those belonging to archipelagic states. “Certain continental coastal States,” said the Algerian delegate, wanted to take advantage of moves to recognize the concept of an archipelagic state “to grab for themselves more and more ocean space”.38 The Turkish delegate referred to a map of the Aegean Sea that his delegation had distributed, bitterly noting how “practically the whole sea” would become the internal waters of one of two countries (Greece) while the other (Turkey) would be excluded from those waters that had traditionally been open to it.39 The Thai delegate attacked the logic of the position taken by India and others. “The elements justifying the concept of archipelagic States such as the Philippines and Indonesia were not only geographical but also political, economic and historical,” he argued, “whereas the concept of an archipelago was purely geographical and topographical”.40 During the course of the debate the British, Soviet, Bulgarian, Dutch, Burmese, and Malaysian delegations joined the opposition to any attempt to apply the archipelagic principle to the archipelagos of continental states. By the end of the debate the delegations appeared to be deeply divided on this issue. Also dividing the delegations was the question of what sort of passage regime should apply to archipelagic waters. The Honduran, Ecuadorian, Peruvian, Egyptian, and Yemeni delegations argued that the innocent passage regime would be sufficient, while a diverse group of states including the UK, USSR, France, Bulgaria, Cuba, Pakistan, Japan, and the Netherlands rejected this view. The Soviet delegate was extremely critical of the passage provisions in the draft articles Djalal had just introduced, not only because they only provided for the principle of innocent passage through archipelagic waters but also because “they provided for the possibility of restriction of passage”. “Such proposals, which did not strive towards compromise,” he added, “were unrealistic”. He then declared that the Soviet delegation would accept the archipelagic concept only if the archipelagic states accepted “free transit, without exception, for ships through archipelagic waters of archipelagic States and through all other international straits”.41 That of course was precisely what the US, which acted on behalf of the G5 on this matter, had been insisting on in its negotiations with Indonesia. Delegations representing some of Indonesia’s neighbours raised a number of other points during the debate. The Singaporean, Malaysian, and Thai delegations reiterated their concern that any provisions dealing with archipelagic states take into account the interests of neighbouring countries. With his country’s fishing industry in mind, the Japanese delegate declared that the convention should protect “the rights and interests of States relating to the existing uses” of archipelagic waters.42 One further question worrying some of Indonesia’s neighbours concerned the economic zones of archipelagic states. There were two aspects of this question. The first was whether it was reasonable for archipelagic states to measure their

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economic zones from the same straight baselines that they used to measure their territorial seas. Satya Nandan tried to pre-empt questions of this sort by noting that the economic zone of a state made up of islands would cover virtually the same area whether it was measured from normal baselines around individual islands or out from straight baselines drawn around the islands. Using straight baselines, he pointed out, would greatly increase the area of the economic zone only if those baselines were more than 200 miles long, which none were in the case of the four sponsors of the draft articles.43 The second aspect of this question was whether it was fair for an archipelagic state to claim an economic zone at all. L.C. Vohrah returned to this theme in the debate on archipelagos. This time, he did not go so far as to suggest that archipelagic states should not be allowed to claim economic zones but he highlighted “the adverse effect on States in the region of a further claim to a 200-mile economic zone beyond the archipelagic boundaries”.44 At least in some quarters the perception was growing that Indonesia and its archipelagic partners were being greedy. The most encouraging feature of this debate for the archipelagic delegations was that no delegation had come out in opposition to the archipelagic concept. But many had made it clear that they would not accept it without a precise definition of an archipelago, a liberal passage regime, and adequate recognition of the interests of neighbouring states. In addition, some had declared that they would accept it only if its provisions were extended to archipelagos belonging to continental states, while others would accept it only if they did not apply to such archipelagos. Yet another worrying sign was that at the end of his statement Vohrah had emphasized that since his delegation had not had time to study the archipelagic states’ draft articles in detail it reserved the right to comment on them at a future meeting and to submit amendments. There was still a very long way to go.

THE FINAL WEEKS By this stage of the session the delegations had long abandoned any hope that they might be able to prepare a draft convention by the time it closed on 28 August. The differences between them were just too great, while the delivery of statements in public meetings inhibited compromise. By early August the delegations had submitted nearly two hundred proposals. Some contained just one or two articles, while others such as the nine-power working paper and the proposal from the archipelagic states contained a large number. In an effort to make some progress the conference leaders (among them Satya Nandan) began preparing a document setting out the main positions on the various issues being debated. This would, they hoped, provide a focus for negotiations at the next session. As this work got underway the three committees continued to meet, a multitude of other meetings took place behind the scenes, and delegations continued to submit proposals. The

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delegations were scrambling to put themselves in the best possible position by the close of the session. On 15 August Sudarmono had a meeting with John Norton Moore. He confirmed the understanding Mochtar and Newsom had reached in Jakarta. As Moore reported the conversation, Sudarmono said that the time was not yet right to finalize an agreement but Indonesia and the US should do so—indeed, they must do so—before the next session. He then issued an invitation for a US delegation to visit Jakarta at the end of the year to hold further talks. One reason for not meeting earlier was uncertainty about whether it would be possible to include the Philippines as part of a deal on archipelagos or whether Indonesia would have to proceed without the Philippines. Sudarmono and Moore then discussed possible solutions to the principal points on which they still differed. Sudarmono suggested that foreign aircraft making use of the right of flight over sea lanes should be required to fly above a certain height, say, 30,000 feet. He also wanted such aircraft to notify local air traffic controllers of their flight. Moore flatly rejected such a possibility. Turning to the width of sea lanes, Sudarmono said Indonesia understood why the US needed wide sea lanes but insisted that 100 miles was too wide. Finally, on the question of straits, he emphasized, as Mochtar had, that Indonesia would not accept the maritime powers’ proposal until the time was right. He suggested that the regime governing passage through straits could be labelled as innocent passage even though it would in fact contain the provisions the maritime powers wanted. Moore rejected this out of hand but then, so Moore recorded, Sudarmono indicated that perhaps the Indonesians could be somewhat flexible on this matter. As he had been in June when the US team met with an Indonesian team led by Sudarmono, Moore was pleased with the progress they had apparently made at this meeting. Sudarmono, he reported, “is consistently the most open and forthcoming of the Indonesian negotiating team”.45 Sudarmono’s invitation put the Americans in a slight quandary. They would of course accept the invitation but when they did should they approach Sudarmono or Mochtar? There had been more signs of tension between the two during the Caracas session. Sudarmono was critical of the decision to cosponsor the working paper. It had, he told Moore, “set back [the] archipelago cause”. Also, contrary to the recent shift in responsibility that Mochtar had claimed was “agreeable to all”, it was not entirely clear who was in charge of negotiating on behalf of Indonesia. Mochtar had told the US delegation that he was in charge of negotiations on archipelagos but during their meeting Sudarmono gave Moore the impression that he was trying to minimize Mochtar’s role by portraying the upcoming talks as being of a technical nature. For their part, the Americans wanted “to maximize Sudarmono’s role without undercutting [the] chances of agreement”. Moore asked for advice on how to respond to the invitation.46 Back in Jakarta Newsom spoke with Mochtar at an Independence Day ceremony on 17 August. Mochtar was pleased that the US had decided not to take

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a position on the archipelago issue at this time. That “preserves [the] climate of cooperation,” he said. By this time Newsom was beginning to worry that the US negotiating team might not fully appreciate the conditional nature of Mochtar’s earlier response. In a message to Washington he emphasized that that response had to be read in full. If the Indonesians decided the climate was not favourable for accepting the US position then there would be no agreement.47 A few days after conveying this message Newsom responded to Moore’s request for advice. He agreed that there was some sort of rivalry between Mochtar and Sudarmono. On the one hand, he wrote, Mochtar “has stressed the primacy of his role”. On the other, Sudarmono emphasized the “major role played by [the] military, of which he was the leading spokesman for law of the sea matters”. In these circumstances, Newsom suggested, the simplest solution was to approach neither Mochtar nor Sudarmono in the first instance. Instead the ambassador suggested that he be instructed to speak to Adam Malik before approaching either of them.48 During the final two weeks of the Caracas session the Indonesian delegation (now without Sudarmono, who departed on 16 August) was largely occupied with problems raised by the delegations of three neighbouring countries, Malaysia, Thailand, and the Philippines. Foremost among these was the Malaysian delegation. As Vohrah had foreshadowed, the Malaysians had a much closer look at the articles drafted by the four archipelagic states. They regarded the provision dealing with Malaysia’s situation as an improvement on the provision in the nine-power working paper but they were still far from satisfied. In introducing amendments to the Second Committee, K.C. Vohrah, who much like Abdul Kadir spoke as if Indonesia had not already entrenched its archipelagic outlook into law, again explained that Indonesia’s archipelagic “claim would result in the sudden severance of the free access of all forms of communications which Malaysia had always enjoyed through the high seas between the two parts of its territory”. As a result, he added, Malaysia “would be deprived of links that were vital to the maintenance of its geographical, economic and political unity as a sovereign and integral nation State”.49 The Malaysians proposed two amendments. The first amended article 2(5). The words “direct communication” were now replaced by “direct access and all forms of communications”, and the article now declared that “such rights of direct access and communications shall continue to be recognized and guaranteed by the archipelagic State”. The second amendment simply stated that the provision in the archipelagic states’ draft articles guaranteeing innocent passage through archipelagic waters would not apply to article 2(5).50 The implication was that Malaysia would enjoy “direct access and all forms of communications” in the waters in question, not merely the right of innocent passage. Vohrah went on to warn that while his delegation “supported the archipelagic concept” it would not accept any formulation that would “destroy or jeopardize the legitimate and existing rights of other States”. Rather ominously, he concluded by foreshadowing further amendments to the archipelagic states’ draft articles. In response Nugroho

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Wisnumurti wondered why these changes were necessary. Either the words “access and all forms” were superfluous or the Malaysians were referring to activities that Indonesia would find unacceptable.51 Nevertheless, he said, Indonesia remained ready to discuss this issue with Malaysia. There, at least as far as the available record is concerned, the matter rested for the time being. The Thais submitted two draft articles that went even further in what they would demand of Indonesia. The first article declared that in any archipelagic or territorial waters belonging to an archipelagic state that had previously been part of the high seas that state “shall give special consideration to the interests and needs of its neighbouring States with regard to the exploitation of living resources” in those waters. Specifically, such an archipelagic state “shall enter into an agreement with any neighbouring State, at the request of the latter…with a view to prescribing modalities entitling the nationals of such neighbouring State to engage and take part on an equal footing with its nationals…in the exploitation of living resources therein”. The second article declared that an archipelagic state “shall recognize, for the sole benefit of such of its neighbouring States as are enclosed or partly enclosed by its archipelagic waters, a right of innocent passage through these waters for the purpose of gaining access to and from any part of the high seas by the shortest and most convenient routes”. “To this effect,” the article continued, “an archipelagic State shall enter into arrangements with any such neighbouring States at the request of the latter”. These articles were absolutely unacceptable to the Indonesians, as Nugroho made clear on the final day the Second Committee met. The first article seemed to allow neighbouring states the right to exploit the resources of an archipelagic state whether or not they had traditionally exploited those resources in a legitimate way. It seemed to allow them to exploit all of its waters that had previously been part of the high seas. It seemed to give neighbouring states the same rights to exploit the waters of an archipelagic state that the nationals of that state enjoyed. It placed the archipelagic state under an obligation to enter into an agreement with neighbouring states whether it wanted to or not. And it contained no definition of “neighbouring states”. This was a particular worry for the Indonesians. As Nugroho explained, the Indonesian government was prepared to consider the interests of immediately adjacent neighbouring states. But it was strenuously trying to avoid legitimizing any claim that the Japanese might have to access to Indonesia’s fishery resources. The second article was also highly objectionable. The meaning of “sole benefit” was unclear, the article seemed to apply to all types of ships, and like the first article it put the archipelagic state under an obligation to give neighbouring states whatever they wanted. Despite all this Nugroho ended his statement by expressing yet again Indonesia’s readiness to consult with its neighbours.52 Also causing problems were the Filipinos. The Philippines continued to insist that its territorial sea extended from its straight baselines out to the lines referred to in the 1898 treaty. In order to protect its position the Philippine delegation

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resubmitted a draft article that it had previously submitted to the Seabed Committee. That article declared not only that “the territorial sea may include waters pertaining to a State by reason of an historic right or title and actually held by it as its territorial sea” but also that any maximum width agreed to by the conference would not apply to a country such as the Philippines that had already established a wider territorial sea before the convention came into effect.53 Such a provision was highly objectionable to a large number of delegations. Indeed, it would undermine everything they were trying to achieve. It also posed a particular problem for Indonesia because one of its islands—called Miangas by Indonesians and Palmas by Filipinos—lay inside the treaty limits (see figure 8.1). In the 1920s the US and the Netherlands submitted a dispute over the ownership of the island to an arbitrator, who ruled that the island belonged to the Netherlands. The concern now was that while the Philippines recognized Indonesian sovereignty over the island it might regard the waters surrounding the island as part of its own territorial sea. If so, the Philippines might challenge Indonesia’s right to include (as Law No.4 did) Miangas as a turning point in its system of straight baselines (see figure 5.2) and thereby designate an area lying within the treaty limits as archipelagic waters and territorial sea belonging to Indonesia. The Indonesians had no desire to challenge the Philippines claim to historic waters. All they wanted to do was to make sure that that claim did not adversely affect Indonesia. Citing Indonesia’s long-stated need to safeguard its political unity and territorial integrity, Nugroho introduced an article that simply declared that “No claim to historic waters shall include land territory or waters under the established sovereignty, sovereign rights or jurisdiction of another State”. In response the Philippine representative thanked the Indonesians for this implied recognition of the concept of historic waters. He completely ignored the substance of the article.54 *** On 16 August the conference produced a paper titled “Main trends”. Over the next few days it revised this paper twice as more and more articles were submitted. The final version was released a few weeks after the conference closed on 29 August.55 The paper did not attempt to present a set of draft articles. The conference was not far enough along to permit that. Instead the paper went through the main topics such as (in the case of the Second Committee’s work) the territorial sea, contiguous zone, continental shelf, exclusive economic zone, landlocked countries, and archipelagos one by one and then under each of these listed alternative “formulas” for the various provisions dealing with that topic. The most important section for Indonesia was of course the one dealing with archipelagos. The provision dealing with the scope of the articles on archipelagos contained the article from the four archipelagic states declaring that the articles applied only to archipelagic states, the article in the nine-power working paper declaring that they

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also applied to off-lying archipelagos, and a similar article submitted by Ecuador. The provision defining an archipelagic state contained one formula taken from the archipelagic states’ draft articles and another that was identical to the articles submitted by the UK at the Seabed Committee except that it left blank the maximum length of baselines and the maximum sea-to-land ratio. The provisions on the rights of neighbouring states included as alternative formulas the draft articles submitted by Malaysia and Thailand as well as by the four archipelagic states, while the alternative formulas dealing with passage all came from the archipelagic states and the UK. Elsewhere in the “Main trends” paper were alternative formulas on straits passage and a great many other matters of direct concern to the Indonesians. It even included the articles on historic waters submitted by the Philippines and Indonesia. Some of these formulas were not necessarily incompatible with one another. For example, as was well understood at the time, it would be possible to define an archipelagic state both in the way the four states preferred to do so (“a group of islands,…interconnecting waters and other natural features which…form an intrinsic…entity”) and in the way insisted on by the maritime powers (“no baseline is longer than…nautical miles”). In other cases, however, the gap between the alternative formulas was great, as for example in the provisions dealing with the scope of the articles on archipelagos and passage through archipelagic waters and straits used for international navigation. There was clearly still a very long way to go if ever the Indonesians were to achieve something close to fulfilling their aspirations. The conference still did not have a proper negotiating text. Nevertheless, the “Main trends” paper at least gave all the delegations taking part in the conference a clearer idea of what their differences were. If only in broad terms, the conference now knew, as Amerasinghe declared on the final day of the session, “where it stood and in which direction it had to move. The stage of discussion in the form of general statements was over. The time had come for active, serious and earnest negotiation.”56 The next session of the conference was to begin the following March in Geneva.

CHAPTER 12

Negotiating with the United States States United the with Negotiating

On 5 September 1974, following the instruction that he had proposed himself, Ambassador Newsom called on Adam Malik to accept Sudarmono’s invitation. When, a couple of weeks later, Newsom met separately with Sudarmono and Mochtar, he detected no sign of animosity between the two men, but they were still adopting different approaches to dealing with the Americans. Sudarmono hoped to reach agreement with the Americans before the Geneva session provided that the two sides could work out their differences on overflight, straits, and the “machinery” by which an agreement could be incorporated into the work of the conference. He fully understood, so he told Newsom, why the Americans would agree to support the archipelagic concept only after there was agreement on a passage regime that guaranteed their interests.1 Mochtar, in contrast, wanted the Americans to express their acceptance of the archipelagic concept before the two sides reached agreement on an archipelagic regime and straits passage. Such an expression of support before the Geneva session would, so he told Newsom, greatly assist Indonesia’s consultations with other countries, though of course any expression of support from the US had to be “correct but not effusive”, for otherwise certain countries would be more likely to oppose the concept.2 The differences between Sudarmono and Mochtar represented a division within the Indonesian government more broadly. On the one hand, the military was prepared to reach an agreement with the US as long as the various matters that it was worried about such as overflight, the passage of warships, and the width of sea lanes were satisfactorily resolved. On the other, Mochtar and a large number of officials within the Department of Foreign Affairs worried that any agreement with the US that involved, as it almost inevitably would, some compromise on Indonesia’s part would damage Indonesia’s standing in the Third World—already a sensitive issue because of the government’s heavy dependence on Western aid—and in turn undermine acceptance of the archipelagic concept. This division was not clear-cut. Adam Malik appears to have worried much less about Third World opinion on this matter than many officials in his department did. Moreover, no one within 269

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the government was implacably opposed to any agreement whatsoever with the US. Thus the differences within the government largely concerned tactics. But tactics mattered. At stake was the success or failure of the government’s campaign to gain international recognition of Indonesia as an archipelagic state. By early October the Indonesian and US governments had settled on sometime in early December for the next round of consultations. Perhaps with these consultations in mind Mochtar gave an interview on national television during which he outlined the differences between Indonesia and the maritime nations regarding the passage of foreign ships and aircraft through the archipelago. He emphasized that unlike the maritime nations Indonesia “divides her waters into commercial and non-commercial passage[,] the latter category including the passage of war vessels”. But he added that “at present attempts were being undertaken to accommodate the two points of view particularly to what extent we could limit the movement of commercial vessels and war ships”. Newsom’s comment was that Mochtar was signalling compromises that “would not be considered defeats but rather part of [a] successful overall campaign to gain recognition of [the] archipelagic principle”.3 There was a hint of wishful thinking in this analysis—the Americans hoped the government would concentrate on how much Indonesia stood to gain rather than how far short it might fall of its original objective—but at the very least Mochtar was laying the groundwork for some sort of compromise at some stage. During the weeks before the Americans arrived the Indonesians worked to resolve a problem with Japan that had the potential to cause difficulties at Geneva. Sometime in October Mochtar had one of a series of meetings with Japanese officials concerning the Banda Sea Agreement. The Indonesian government had told the Japanese that it would not renew the agreement, which had been renewed annually since 1969. Much as the agreement irked the Indonesians—it contained no recognition of Indonesia’s archipelagic claim and generated little income for Indonesia—the government had to enter into negotiations on a new agreement. “Before Prime Minister Tanaka could agree to express sympathetic views vis-a-vis the archipelagic principles when he visited Indonesia in 1974,” Djalal wrote a few years later, “the Indonesian approval to continue the arrangement in the archipelagic waters had to be secured first.”4 The challenge from the Indonesian point of view was how to satisfy the Japanese without recognizing them as having rights comparable to those of immediately adjacent states such as Singapore and Malaysia. But Mochtar had apparently gone some way towards satisfying the Japanese. In mid November a Japanese negotiator told a US diplomat that Mochtar was confident that a “mutually agreeable understanding could be worked out in [the] context of international acceptance of [the] archipelagic principle”.5 With this problem with Japan seemingly under control the most immediate task now was to prepare for the upcoming talks with the US delegation.

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THE RETURN OF THE US DELEGATION By early December the two governments had agreed on 9 and 10 December as the dates for the consultations. They had also finalized their negotiating teams.6 Sudarmono remained firmly in place as the leader of the Indonesian team; E.H. Wiryosaputro-Laurens (formerly E.H. Laurens), then acting director-general for political affairs in the Foreign Ministry, was the deputy leader; and Hasjim Djalal was the secretary. Three military officers and one Foreign Affairs official were also members of the team. In addition, there were six advisers, one of whom was Colonel Trihardjo. John Norton Moore again led the Americans. He was accompanied by Bernard Oxman, Admiral Morris, a State Department geographer, and a captain in the US coast guard. After the US team arrived on 8 December Moore and the US chargé d’affaires, Donald Toussaint, had dinner with Sudarmono and Djalal. The next morning, apparently just before the formal consultations began, they called on the defence minister, General Panggabean, and Mochtar. Even at this point the division within the Indonesian government over how to handle negotiations with the US had become apparent. Indeed that division appears to have deepened. After giving a “spirited defense” of the archipelagic principle, Panggabean said that he fully understood the security interests the US had in transit and overflight and expressed his confidence that the two sides could reach an accommodation. Sudarmono explained after the meeting that the minister was expressing “political goals” and that any agreement still depended on the satisfactory resolution of technical issues. Nevertheless, the assumption on the part of military leaders was that there was no reason there could not be an agreement before the Geneva session as long as those issues were resolved. In contrast, Mochtar’s “entire posture”, so Toussaint wrote, was that he did not want to reach any agreement with the US before Geneva that involved linking US recognition of the archipelagic principle to Indonesian support for the US position on straits. Mochtar was, if anything, more worried than he had been about how other members of the non-aligned movement and the G77 would react to such an agreement. At one point “he commented [that the] 77 would look upon Indonesia as [a] traitor and ‘you know [the] fate of traitors’”.7 Perhaps because of Mochtar’s outlook Sudarmono was at pains in his remarks at the beginning of the formal consultations to emphasize that Indonesia would need to hold discussions with its neighbours and others before the Geneva session.8 But he also made it clear he hoped Indonesia could reach an understanding with the US before then. For his part Moore stressed yet again the three parts of the American position: agreement on the definition of an archipelago, a satisfactory regime relating to the transit of ships and aircraft through and over archipelagic waters, and Indonesia’s support for the US position on straits. Reaching an agreement on the first of these—the definition—was no longer a major problem. Djalal pointed out that the archipelagic states believed the maximum length of archipelagic baselines

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should be 100 miles except that 5 percent of the baselines could be up to 125 miles long. This was much more generous than criteria the Americans had initially proposed. Because they wanted to find a way to include the Bahamas in any archipelagic state provisions and to ease the concern Nandan had that Fiji might not qualify as an archipelagic state if the US’s criteria were adopted, however, the Americans said they would be happy to adjust the figures. With that matter out of the way the two teams could focus on the areas where they had real differences, namely, the width of sea lanes, the passage regime, and the straits issue. Initially, at least from the Americans’ point of view, discussion of these matters went badly, so badly that when Moore and Oxman called on Malik after the morning session Moore complained in the presence of two of Indonesia’s negotiators that the Americans’ efforts to reach agreement before Geneva were not being matched on the Indonesian side. Moore also made the point that as far as he could see non-aligned states would welcome an agreement between the US and Indonesia before Geneva. When a Foreign Affairs official commented that they would need to consult with Malaysia on the straits issue Moore replied that he had the impression the Malaysians were prepared to be flexible. According to the US record of this meeting, Malik supported the view that there should be an agreement before Geneva and encouraged the two sides to “start all over again in [the] afternoon”.9 Over the next day and a half they tried to narrow their differences. The first area of major disagreement concerned the width of sea lanes. Moore emphasized the sea lanes had to be wide enough to offer some protection against a surprise attack from a submarine outside a sea lane. Sudarmono said that as far the Indonesians were concerned the only consideration should be navigational safety. When he added that the US should be prepared to assess the risk of using a sea lane, Moore agreed but argued that the sea lane passage regime would not provide “a practical usable right” if the lanes were too narrow. When the Americans tried to find out exactly what problems the Indonesians were worried about, they mentioned two: they did not want any foreign traffic near Buru and they were worried that if the sea lanes were very wide that might make it difficult to exploit oil and other resources that might be present in those sea lanes. In both cases the Americans were (at least in their own view) able to provide satisfactory solutions. The Americans proposed a way of defining sea lanes that would allow any sea lane passing north-south through the eastern part of Indonesia to be kept well away from Buru; the only thing that mattered was that the sea lane should enter and exit Indonesian waters at the same points as the shipping route now passing close to Buru did. And the Americans assured the Indonesians that there would be no problem exploiting the resources located in sea lanes as long as there was “no unjustifiable interference” by the archipelagic state. It would only be a problem, they added, if the sea lanes were very narrow. In the end, the gap between the two positions remained great: the Indonesians were prepared to

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accept sea lanes as broad as 20 miles, while the Americans were willing to accept sea lanes as narrow as 80 miles. The negotiators turned to the other points on which they differed. In both his opening and his closing remarks Sudarmono pointed out the importance of making a distinction between commercial and non-commercial vessels. The Americans continued to reject any such distinction but did express their willingness to include in the text a prohibition against any use or threat of force that was contrary to the UN Charter. Both Sudarmono and Djalal raised problems associated with overflight; they were worried about collisions between Indonesian aircraft flying between the islands and foreign aircraft flying through the archipelago above sea lanes. Again there was, as during the meeting Sudarmono and Moore had in Caracas, discussion of the possibility of limitations of the altitude at which transiting aircraft had to fly. The really significant aspect of this discussion was that the Indonesians did not reject overflight in principle. There was no agreement on straits passage, either on the nature of the passage regime or the role the IMCO might play in the designation of traffic separation schemes (the Americans argued that such schemes should have the approval of the IMCO before being implemented, while the Indonesians were willing to refer them to the IMCO only for its advice), but there was an understanding that some sort of solution should be possible. The straits question was of course crucial to the whole deal—Moore emphasized yet again the linkage between US acceptance of an archipelagic regime and Indonesian support for the US position on straits. Finally, in view of the delicate state of the negotiations, the two sides agreed that the substance of their talks should be kept confidential. That ended the formal proceedings. The consultations had resulted in some progress. More important, there was (at least as the Americans perceived it) a “mood of understanding that final agreement was close”.10 But there had been no breakthrough. There was not even a clear statement of the points on which the two sides agreed and disagreed. Then, in circumstances that are unclear, Sudarmono and Moore arranged to have a private meeting “on a personal basis”. They met twice on 11 December, first at the US residency early in the morning and then at Sudarmono’s office later in the day.11 By the end of the day the two men had reached a “personal understanding” that they would try to persuade their respective governments to adopt. Our only record of this understanding is contained in a document that Moore prepared setting out the points on which they agreed and the ones on which they still disagreed. Sudarmono read this document and made “some changes”, apparently of a minor nature, but whether they were incorporated into the text at that time is not clear. Moreover, Sudarmono reserved the right to study the document more carefully. Nevertheless, we can assume that the document substantially represented the understanding Moore and Sudarmono reached, especially since Sudarmono indicated that there were now “no major differences”

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between the two negotiators aside from those mentioned in the document. The most important aspects of the understanding were as follows: 1. Moore was willing to relax the criteria governing the drawing of “archipelagic lines”. As formulated in the document, an archipelagic state could draw such lines around “the archipelago” provided that the land-to-water ratio was less than 1:1 and more than 1:10 and “provided that any such lines do not exceed 80 nautical miles…except that one percent of such lines may be up to 125 miles in length”. Although nearly 8 percent of the straight baselines in Law No.4 were 80 or more miles long, the document conveys the impression that Sudarmono was prepared to accept this criterion or at least did not object to it at this time. This may have been because the document made it clear that the two governments “may if necessary agree on technical changes on the precise figures”. 2. Sudarmono and Moore came closer to agreement on the width of sea lanes. Sudarmono was prepared to accept whichever was the narrower of 40 mile or 80 percent of the distance between the islands on either side of the sea lane, while Moore was willing to accept whichever was the narrower of 60 miles or 80 percent of the distance. That still left a gap but a much smaller one. 3. They agreed that the waters outside sea lanes would be subject to the innocent passage regime. This meant that submarines would have to navigate on the surface when they were outside a sea lane. The only remaining difference was that Sudarmono insisted that warships passing through the archipelago outside a sea lane had to give prior notification. During the March consultations the Americans had actually proposed a provision requiring warships to give prior notification if they were forced to depart from a “passage area” (as they called sea lanes at the time). Now Moore wanted to exclude any mention of prior notification whatsoever. 4. They reduced the gap between them on fundamental aspects of the archipelagic passage regime. Sudarmono dropped any reference to a distinction between military and commercial ships. No vessels or aircraft making use of the archipelagic passage regime would be required to give prior notification. Sudarmono was prepared to allow submarines to pass through the archipelago while submerged. And he accepted the principle of overflight; the only difference between the two negotiators was that while Moore wanted aircraft to be able to fly as low as 22,000 feet Sudarmono insisted that they fly above 25,000 feet. 5. The negotiators achieved a general understanding about the nature of archipelagic passage. The document defined archipelagic passage as “the exercise of freedom of navigation and overflight”, thus implying a similarity to the freedoms associated with the high seas, but ships and aircraft could exercise that freedom “solely for the purpose of transit through the archipelago”.

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Moreover, ships and aircraft had to refrain from violating the principles of the UN Charter, pass through archipelagic waters without unreasonable delay, and show reasonable regard to other users of these waters. In addition, the document emphasized that subject to the provisions concerning passage the archipelagic state exercised sovereignty over “the resources, waters, seabed, subsoil, and airspace enclosed within the archipelagic lines”. Sudarmono would try to persuade the Indonesian government to accept the principle of unimpeded transit of straits used for international navigation. Thus he accepted the linkage between the archipelagic and straits questions that was fundamental to the US negotiating position. There was still disagreement about what role the IMCO might play in implementing traffic separation schemes. Sudarmono continued to reject any suggestion that the government would have to gain the approval of the IMCO before implementing such a scheme. There was an understanding that Indonesia would continue to consult with neighbouring states to resolve the questions they had regarding access to fishing grounds, the maintenance of submarine cables, and other matters in which they had an interest. There was an understanding that Sudarmono would consult with neighbouring states and (though this was not in the document) that Moore would do the same with the maritime powers. It was agreed that Sudarmono would lead a small delegation to Washington in January or February so that the two governments could finalize an agreement before the Geneva session. The document was not explicit about how such an agreement would be incorporated into the work of the conference but suggested that Indonesia might introduce the text and the US would then express its support for it. Finally, the document contained the seemingly straightforward statement that it “will not be distributed outside the relevant authorities of the two governments” and that “outside discussion of the nature of the conversations will be as agreed”.

While Sudarmono and Moore continued to disagree on some matters, they had taken a huge step towards closing the gap between the two sides. Moreover, they were confident of resolving their remaining differences. Sudarmono was so optimistic that he emphasized that the aim of his trip to Washington would be to “dot the i’s”. Before that could happen, however, he would have to persuade his colleagues on two fronts. First, he would have to convince them to accept the substance of the understanding he had reached with Moore. Second, he had to overcome the deep reluctance many within the government, particularly Mochtar and many officials within the Department of Foreign Affairs, had about reaching any agreement with the US before the Geneva session. They were especially wary about any agreement that linked acceptance of the archipelagic principle to

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Indonesian support for the sort of straits transit regime the Americans insisted on. The personal understanding could easily amount to nothing. For their part the Americans, though fully aware that some within the Indonesian government opposed an immediate agreement with the US, were brimming with confidence. This was partly because of their assessment of Sudarmono. The air marshal, they reported, “seems clearly in authority here in Jakarta. [The] pragmatic and businesslike tone and spirit of [the] direct Moore-Sudarmono talks [were] unlike any previous meetings with Indonesians on [these] issues.” But “even [the] full delegation meetings suggested [a] mood of understanding that final agreement was close.” Immediately after the consultations Oxman flew to London to give a legal adviser in the British Foreign Office, D.H. Anderson, a detailed account of what had transpired, though not so detailed that it revealed the full extent of the understanding Sudarmono had reached with Moore or, apparently, mentioned Sudarmono by name.12 By this time planning was already underway for a meeting of the G5 at the end of January at which Moore would give a briefing on the consultations in Jakarta. In the meantime Moore and his colleagues would go to Nassau for consultations with the Bahamians.

PULLING BACK Intensive discussions about Indonesia’s position appear to have begun within the Indonesian government immediately after the US delegation left Jakarta. On New Year’s Day Sudarmono told the US chargé d’affaires that he hoped to be in a position in ten days to convey “some messages” to the US law of the sea team. Then on 6 January 1975 a Japanese supertanker, the 237,000-ton Showa Maru, ran aground in Indonesian waters just south of Singapore and began spilling several thousand tons of crude oil into the strait. There had been many oil spills in the Malacca and Singapore straits before this incident but none on this scale. The disaster that the government had long feared and warned of had struck.13 In the circumstances the government’s official response was surprisingly restrained. On 8 January the acting foreign minister, Panggabean, summoned the Japanese ambassador to tell him that the government would be seeking compensation for the damage, to remind him of the interest the three straits states had in ensuring safety of navigation in the strait and protecting the marine environment, and to ask the Japanese government to cooperate in preventing any further incidents. He also noted Indonesia’s view that tankers greater than 200,000 tons should take the (longer and thus more costly) route through the archipelago via the Lombok and Makassar straits. When Malik returned from an overseas trip on 11 January, he too was remarkably restrained. He “deeply deplored” what had happened and warned supertankers against using the Malacca Strait but also dampened expectations that Indonesia could impose limitations on shipping in the strait by noting that the

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12-mile limit was not yet part of international law.14 Initially Japanese and US officials feared that the disaster would harden Indonesia’s position on straits and archipelagic passage but by the middle of January their fears had substantially eased. When Sudarmono finally met with Newsom (who apparently had been away when the US delegation visited) on 17 January the ambassador was able to report that Sudarmono “is generally optimistic about reaching agreement on archipelago and straits matters”.15 But despite this assurance the meeting with Sudarmono did not go quite as Newsom had hoped. The two men reviewed the remaining differences between their governments but the main point to come out of the meeting was that the Indonesians would be consulting with a wide range of states over the next few weeks and that when those consultations were complete the government would send a written proposal to Washington. It might then be possible to reach agreement without a further meeting between US and Indonesian officials. If that was not possible, then Sudarmono would travel to Washington as originally agreed. At the end of all this Newsom was left with the “feeling Sudarmono is pulling back slightly from [his] earlier position”. The problem was that Sudarmono could not count on the support of other key figures within the government. Indeed, he asked that his views be “carefully protected since some within [the government]—including Professor Mochtar—are not in full agreement with him”. Mochtar had of course been wary of reaching agreement with the US for some time. He had told Newsom in August that there would be no agreement until the time was right. And now the time was anything but right. He and others within the government did not want to agree to any straits regime that did not give straits states adequate authority to regulate navigation. The Showa Maru disaster, which he was to tell Newsom made him “very angry”,16 intensified that view. Mochtar also resented the way the Americans insisted on linking their support for the archipelagic concept to Indonesian support for the US position on straits. By the middle of January he was actively promoting the possibility that Indonesia could gain enough support for the archipelagic concept from developing states and perhaps some developed states as well without having to enter into an agreement with the US. On 16 January Mochtar announced that the government was about to send a small delegation led by Abdullah Kamil to the Middle East and another led by Anwar Sani to Africa for talks on law of the sea matters. It became apparent a few weeks later that the primary purpose of these missions led by senior diplomats was to find out whether Indonesia did in fact have enough support from developing states to allow it to avoid having to reach agreement with the US if it decided to take that course. Aside from Newsom’s “feeling”, however, the Americans had no reason to think that a fundamental change in Indonesian policy might be underway. At a meeting to the AALCC in Tehran Hasjim Djalal and another Indonesian diplomat, Suffri Yusuf, approached Oxman on separate occasions to ask about “developments

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since the talks in Jakarta”. Both gave the impression that they were eager for a further meeting to take place before Geneva. When Oxman told Yusuf that the Americans “were optimistic problems could be resolved”, Yusuf replied that that was what he had wanted to hear and said that he would contact Mochtar and Sudarmono right away. Djalal, Oxman learned from the Japanese delegation, had been telling Asian and African delegates in Tehran that Indonesia “is consulting with [the] US and other maritime powers on [the] archipelago issue”.17 Thus at the end of January all appeared on track for an agreement before the Geneva session. On 31 January, the day after Oxman reported on his conversations in Tehran, Moore briefed a meeting of the G5 in London on his consultations in Jakarta in December and in Nassau on 27–28 January.18 The other members of the G5 all had concerns about various aspects of the package the US was working out with Indonesia and the Bahamas. The French and the British wanted to broaden the package to include an understanding that the archipelagic states would support the principle that all islands should be entitled to economic zones. The French objected to any definition that contained a political element, arguing that the provisions should apply to territories as well as to independent states. The Japanese objected to the idea that the area of water had to be greater than the area of land before a state made up of islands could qualify as an archipelagic state; that, they said, discriminated against states such as Japan where the area of land was greater than that of water. Finally, there were concerns about enabling the Bahamas to become an archipelagic state. The British worried that relaxing the criteria to suit the Bahamas (by for example regarding the waters inside atolls as land in calculating the land-to-water ratio) would allow several other states made up of islands to claim archipelagic status, while the Soviets feared that the application of the archipelagic concept to the Bahamas would greatly reduce the area that Cuba would be able to bring under its jurisdiction. The British wondered just how deeply the Bahamians were committed to achieving archipelagic status. In response to these points, Moore agreed that allowing islands to claim economic zones would “counter-balance the gains of archipelago states”, emphasized how important archipelagic status was to the Bahamians, and reported that the Bahamas was “seeking an accommodation with Cuba” on a bilateral basis. After a discussion of the passage provisions he had been negotiating with Indonesia Moore appealed to the G5 to “stand firm as being against the archipelago concept until a package deal was obtained and not give this position away” until the archipelagic states had agreed to support the G5’s position on straits transit. The meeting authorized Moore to continue negotiating on their behalf but the French repeated their reservations about limiting the archipelagic provisions to independent states and the British said they shared Japan’s concern about the exclusion of states (such as the UK as well as Japan) having a land-to-water ratio greater than 1:1. Following this meeting the Americans produced a document titled “Outline of proposed archipelago-straits understanding” and dated 7 February 1975 that

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reflected the discussions they had had in Jakarta, Nassau, and London. The outline required that the land-to-water ratio be at least 1:9 rather than 1:10 as set out in the Moore-Sudarmono understanding. Whereas Moore had been prepared to accept sea lanes as narrow as 60 miles and Sudarmono as wide as 40 miles, the outline stipulated that they would be whichever was the narrower of 80 miles or 80 percent of the distance between islands. And the outline included the expectation that all parties to the understanding would support the principle that all islands should be entitled to economic zones. Otherwise the provisions in the outline were virtually identical to those in the Moore-Sudarmono understanding.19 The US officials gave a copy of the outline to the Foreign Office, Satya Nandan, and Indonesian, Philippine, and Bahamian representatives as well. After meeting with Nandan on 8 February Moore reported that “Fiji could support [an] agreement along [the] lines” of the outline “as soon as [the] US reaches agreement with Indonesia”. Nandan told Moore that “he plans to approach Indonesia, [the] Bahamas and possibly [the] Philippines to express Fiji’s sympathy for [the] US proposal and [the] importance of reaching early understanding”.20 There was much less enthusiasm for the outline in London. Anderson was disappointed that the outline retained various provisions about which the British and others had raised concerns at the G5 meeting.21 Noting that the French argument “has a certain force”, he could see no rationale for preventing dependent territories such as the Seychelles and Bermuda from claiming archipelagic status. Similarly, he failed to see any logic in the stipulation that the land-to-water ratio had to be less than 1:1. Surely, he commented, “an archipelago can be just as much a unit, if not more so, when the islands become bigger and the waters in between correspondingly narrower”. Anderson also had serious misgivings about the rules regarding the length of straight baselines set out in the outline. In keeping with its pursuit of “objective criteria”, the UK had proposed that the maximum length of straight baselines be 48 miles, which was four times the proposed width of the territorial sea and just slightly longer than the longest straight baseline endorsed by the ICJ in the Anglo-Norwegian Fisheries case. Now, in contrast, the US was prepared to accept the inclusion of a few straight baselines as long as 125 miles. There was of course a clash of logics here. The British were hanging on to the hope that it would be possible to come up with an “objective” formula and then see which archipelagos qualified. The Americans had long abandoned that logic: the formula would come after a decision was made about which archipelagos should qualify. As a result of all the fiddling with formulas Anderson was coming around to the view that “the sort of vague criteria advocated by Indonesia” might well be preferable to the approach being taken by the Americans. Shortly after Anderson expressed his views the Foreign Office sent a telegram to its embassies in several other maritime states giving them the gist of the “Outline” and the government’s misgivings about it and asking them to find out how those states reacted to its provisions. The telegram noted that the information was highly

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confidential and asked the recipients to treat it with the greatest possible care: “Premature disclosure would be most embarrassing to the archipelagic claimants and could wreck the chances of an agreement.” The embassies quickly reported on reactions to the outline. The New Zealanders doubted the archipelagic states would agree to free transit of straits as part of the package. The Dutch argued that the provisions should only apply to states rather than to both territories and states, for otherwise it would be easier for continental states to insist that they should apply to “continental archipelagos” as well. The Italians would support the provisions. The Norwegians welcomed the US initiative but said that as cosponsors of the eight-power paper (which would apply to archipelagos belonging to continental states as well as to archipelagic states) they could not express their support openly. The only substantial objections came from the West Germans. They disliked the whole idea of a special regime for archipelagos. They doubted whether it could be designed to apply only to Indonesia, the Philippines, Fiji, and the Bahamas. Soon other states made up entirely of islands would want to claim archipelagic status and then so too would continental states such as Canada and Greece, beginning “the descent of what may turn out to be a slippery slope”. Even so, however, West Germany would probably sit on the fence.22 The upshot of all these reports was that none of the states the Foreign Office had contacted would oppose the US initiative even if they were not entirely happy with it. Meanwhile, back in Jakarta, Mochtar was digging in his heels. On 10 February he told Newsom that there was little chance of a meeting between Indonesian and US officials before Geneva. He said that most officials who were directly involved in law of the sea matters were busy with the Showa Maru disaster and that he himself was busy preparing a new law regulating political parties. Mochtar suggested to the ambassador that there was in fact no point of meeting until the US indicated its acceptance of the archipelagic concept. Abdullah Kamil and Anwar Sani’s diplomatic missions had apparently yielded very encouraging results. Mochtar had, so he told Newsom, “pledge[s] of support from Arabs and Africans and it looked as if India would also come along”. He may have been exaggerating the support for Indonesia’s position; the Indians were still insisting that any archipelagic provisions should apply to the archipelagos belonging to continental states as well as states made up entirely of islands. In any case, he felt no need to cooperate with the US at this point. Unless the US was willing to support the archipelagic concept, he said, it might find itself bypassed without achieving what it wanted on straits passage. Even then, he seemed to be saying, the US would not get quite what it wanted. Because of the Showa Maru incident Indonesia could never accept the concept of “free passage”.23 He also made it clear that Indonesia could not accept any regime that required straits states to gain the approval of the IMCO before implementing traffic separations schemes and other safety measures. The IMCO, he declared, “is controlled by big powers who are always able to screw weaker countries”.24 The only ray of hope that he offered Newsom was

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the suggestion that the definition of straits passage contained in a British proposal might provide the basis for resolving the differences between Indonesia and the US on straits. As Mochtar told Newsom, Indonesian officials were at this time preoccupied with the Showa Maru incident. Soon after the disaster the government called for a meeting of the three straits states in the hope of finding a way to avoid any repetition of what happened on 6 January. On 19 February, after more than two days of intensive discussions, officials representing the three governments hammered out an agreement that Malik, Rajaratnam, and Tengku Ahmad Rithauddeen of Malaysia then endorsed during a brief meeting. In some respects this agreement went much further than the “understanding” of November 1971. The three governments agreed to establish a traffic separation scheme as soon as possible, work out specific limitations on supertankers, and establish at ministerial level a body titled the Council for the Safety of Navigation and Control of Marine Pollution in the Straits of Malacca and Singapore. But officials failed to agree on any specific regulations. More fundamentally, the question of the status of the straits remained unresolved. For this reason the three governments—Indonesia backed by Malaysia on one side and Singapore on the other—had been unable to agree on what role if any the IMCO might play in the regulation of navigation in the straits. In the end they could only agree that “the interests of the international maritime community will be taken into account”.25 On the very day that this meeting concluded Indonesian officials, apparently led by Sudarmono, began two days of talks on law of the sea matters with a visiting Soviet delegation. Sudarmono told Newsom shortly afterwards that the Soviets would probably be satisfied with any agreement that the US and Indonesia were likely to reach. This was hardly surprising, since the Soviets were working so closely with the Americans. “You must have been talking with them,” Mochtar remarked to Newsom a few days later. Nevertheless, partly because they could leave the hard work to the Americans, the Soviets came across as more accommodating than Moore and his colleagues. Following the meeting Panggabean referred to the “understanding” the Soviet delegation had shown for Indonesia’s need to include provisions for archipelagic states in the convention.26 As all these events took place, the Geneva session was drawing closer and closer. Indonesian officials still had not worked out how to handle the Americans. They wanted to find a way to break out of the seemingly impossible bind the US had put them in by linking US acceptance of the archipelagic concept to Indonesian support for the US position on straits transit. By the middle of February they were beginning to form a consensus on how they might do this. Rather than negotiate within the very restrictive framework created by the US they would look at the archipelagic issue as part of a larger package that included not only the archipelagic principle and archipelagic and straits transit but also the territorial sea, economic zone, and possibly other major topics that affected many

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countries. When Sudarmono met Newsom on 22 February the air marshal implied, so Newsom recorded, “that this would make it easier for Indonesia to make concessions needed for agreement with [the] maritime powers”.27 This was indeed the logic. Those members of the G77 likely to condemn Indonesia for accepting the US position on straits might be much less critical if a straits regime acceptable to the US was part of a larger package that also gave them real benefits. Of course this was the rationale for the concept of the package deal that formed the very basis of the Third UN Conference on the Law of the Sea. The Indonesians were simply using that rationale to give themselves more room to manoeuvre. During their meeting on 22 February Sudarmono also outlined a number of matters he and his colleagues were discussing in relation to archipelagos and straits. He mentioned, among other things, that using new terms such as “straits passage” and “archipelagic passage” might make agreement easier. He told Newsom that he would be meeting Mochtar on 26 February and that he would then contact the ambassador for a further meeting.28 By this time the US law of the sea team in Washington were becoming increasingly impatient. Hoping to prod the Indonesians into action, they wanted to enlist the help of the UK and the USSR in persuading them to reach agreement before Geneva. Newsom suggested that the team wait until he had heard back from Sudarmono but the 26th passed without a word from Sudarmono. This may have been partly because Sudarmono was busy following developments in East Timor. After a number of public figures expressed alarm about the possibility of a communist takeover of East Timor Sudarmono told the press on 27 February that Indonesia would not be increasing its military forces in the area and that it had no “territorial ambitions”.29 But the more likely reason for Sudarmono’s silence was that the Indonesians had still not quite worked out crucial aspects of the position they would take on archipelagos and straits during the Geneva session. In any case they felt no sense of urgency to reach an agreement with the US before the Geneva session. Mochtar was now even more confident that Indonesia might be able to get what it wanted without having to deal with the US. At a diplomatic reception on 1 March Mochtar told Newsom that there was no chance of a meeting before Geneva unless the US were to send an emissary to Jakarta. When the ambassador asked where that left the US, Mochtar replied that “Indonesians [were] making great progress on archipelago[s] and now have sufficient African, Arab, and Asian votes to achieve it at [the] conference even without big power support”. After this encounter Newsom reported that “I have the feeling Mochtar has never really believed it possible to reach agreement with us on archipelago[s] and straits that would be consistent with Indonesia’s Third World stance.”30 When, two days later, he had still not heard from Sudarmono he contacted Washington to suggest that the law of the sea team go ahead with their plan to contact the British and Soviets.31 Sometime in the first few days of March the Indonesians completed a series of interdepartmental meetings during which they made several important decisions

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about how they would approach the Geneva session. Many of these decisions were embodied in a set of draft articles on archipelagic states that they apparently had no intention of formally submitting at Geneva but would use as a guide in their consultations.32 The Indonesian delegation would be prepared, first of all, to accept “objective” criteria for the drawing of straight baselines but it wanted a less restrictive criterion concerning the maximum length of these baselines than the one being put forth by the maritime powers. Specifically, the maximum length should be 100 miles, with the exception that up to 5 percent of the baselines could be up to 125 miles long. While going part of the way towards accommodating the maritime powers, the Indonesians were prepared to make what they regarded as two major concessions to neighbouring ASEAN states in the hope of gaining their support for the archipelagic principle. The first of these concerned Malaysia’s insistence on certain rights in the waters between West and East Malaysia. L.49 had “recognized and guaranteed” that a state in Malaysia’s situation had the “continued right” of “direct communication” through archipelagic waters lying between different parts of its territory. During the Caracas session L.C. Vohrah had introduced an amendment that gave a state such as Malaysia “rights of direct access and communications”. Although Nugroho had vigorously objected to this amendment, the Indonesians now decided that they would accept it.33 Thus the Indonesian draft articles included the Malaysian amendment, apparently word for word. The second concession concerned the insistence by Singapore and Thailand that their fishermen have access to Indonesian waters. After prolonged consultations with the Singaporeans and Thais the Indonesians had come to accept that they would have to include some reference to their interests in the convention, but they would not accept any provision that gave neighbouring states unlimited fishing rights. According to Djalal the Thais proved to be the main stumbling block. The Thais argued that Indonesian’s archipelagic waters would remain part of the high seas until an international convention recognized the archipelagic principle and that for this reason Thai fishermen would remain free to fish anywhere in those waters until that time. Indonesia, Djalal later wrote, “could not possibly accept this interpretation because it nullified Indonesia’s archipelagic concept and because of that meant that Thailand did not recognize Indonesia’s sovereignty over its archipelagic waters”. The Indonesians were determined that any article recognizing the interests of fishermen of neighbouring states would apply only in those specific areas where they had long fished and only if they continued to use those methods they had long used.34 However, they had apparently not quite worked out their final position on this matter when they completed the draft articles. One of the articles provided for the recognition of the fishing “activities” or “rights” (which term was open to negotiation) of the nationals of immediately adjacent states in archipelagic waters. The implementation of that recognition would have to be negotiated bilaterally

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between the archipelagic state and its neighbours. The implication was that the fishermen of adjacent states would not be allowed to operate in Indonesia’s archipelagic waters without the agreement of Indonesia. The Indonesians made several important decisions about the passage of foreign ships. There should, they decided, be two different types of passage. Merchant ships would have the right of innocent passage but only along those routes customarily used in international navigation. Under a regime to be known as “sealanes passage” surface warships and submarines could pass through the archipelago but only along sea lanes designated by the archipelagic state. These sea lanes would be no more than 20 miles wide or 30 percent of “the width of the relevant waters”. Nuclear-powered vessels and vessels carrying nuclear weapons would be required to provide prior notification, while non-nuclear submarines cruising below the surface would be (depending on the result of negotiations) “required” or “recommended” to give prior notification to the archipelagic state. Non-nuclear warships, as well as fishing vessels, research vessels, and oil tankers, “would be allowed to pass through the sealanes without giving prior notification, although authorization ‘may’ be required of them for passage through archipelagic waters outside the sealanes”. The Indonesians knew from their negotiations with the Americans that many of these passage provisions would be unacceptable to the maritime powers—they would, for example, never agree to the prior notification of nuclear submarines—but presumably they were banking on enough support from other states to circumvent their objections. In a major departure from their earlier position that a law of the sea convention should not be concerned with aircraft the Indonesians included draft articles dealing with overflight by “state aircraft”. Such aircraft would have the “privilege of overflight” over the sea lanes but only if they flew above 45,000 feet. If they flew between 35,000 and 45,000 feet, they would be required to give prior notification and stay in “continuous radio contact with air traffic controllers of the archipelagic state”. State aircraft flying below 35,000 feet would be required to obtain authorization from the archipelagic state and be “at all times subject to the control” of its air traffic controllers. Like the provisions dealing with ships these articles were unlikely to satisfy the major powers. With the exception of reconnaissance aircraft such as the U-2 and the Blackbird most military jets normally flew below 45,000 feet, while few turboprops were capable to reaching that altitude. Apparently the articles did not deal with aircraft landing and taking off from carriers undertaking “sealanes passage”. Nevertheless, the very existence of articles dealing with military aircraft represented a significant concession on the part of the Indonesians. Finally, the draft articles contained several provisions asserting the archipelagic state’s sovereignty over its archipelagic waters. One of them followed L.49 in giving archipelagic states the right to enact laws and regulations over a wide range of matters in relation to their archipelagic waters. Another expanded the

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article in L.49 that simply required foreign ships to comply with the laws and regulations of the archipelagic state. It required ships and aircraft undertaking “sealanes passage” to “proceed without delay” and “refrain from any threat or use of force”. It also prohibited ships and aircraft from engaging in a number of activities such as military manoeuvres and scientific research. The implication of these two provisions was that ships and aircraft would be allowed to pass through the archipelago but only on the archipelagic state’s terms. There was an additional provision concerning sovereignty that had not appeared in L.49 at all. It declared that none of the provisions concerning passage “shall be construed as (limiting) (prejudicing) the sovereignty of the archipelagic state over its archipelagic waters”. This was important to the Indonesians not only because it helped to avoid the impression that some of the country’s waters might not be fully under its sovereignty but also because it allowed the state to make full use of those waters and the resources in and under them. In addition to drafting a nearly complete set of articles dealing with archipelagic states the Indonesians decided that the delegation should insist that any discussion of the archipelagic issue be part of a larger package than the one proposed by the US. The Indonesians regarded this as their best chance to gain recognition of the archipelagic principle. As part of the larger package the delegation would, in the interests of gaining that recognition, be prepared to compromise on the question of straits transit. In particular, it would no longer insist that passage through straits used for international navigation should be subject to the innocent passage regime. But it would not accept any straits articles that could jeopardize Indoneia's standing in the G77. Thus it would not accept any of the straits proposals that had already been rejected by the G77. It would be necessary to draft new articles that gave the maritime powers much of what they wanted but avoided terms such as “free passage”.35 Now that the Indonesians had worked out their negotiating position Sudarmono finally met with Newsom on 5 March.36 He outlined the delegation’s position on a larger package and the question of straits—indeed, this is how we have some idea what that position was—but gave little detail about the draft articles. For example, he told Newsom that Indonesia would accept the principle of overflight and added that it wanted to restrict overflight to a 5000-foot corridor for jets at the upper limit of their capacity but did not specify just how high that corridor would be. Similarly, he said Indonesia had no difficulty with the criterion proposed by the US concerning the length of archipelagic baselines but did not mention the much less restrictive criterion in Indonesia’s draft articles. As he remarked during the meeting, he gave Newsom “only portions of Indonesia’s negotiating stance, implying there may be some negotiating flexibility”. When Newsom asked whether the delegation might try to gain recognition of the archipelagic principle without reaching an accommodation with the maritime powers, Sudarmono replied that Indonesia would strive to find as broad a consensus as possible.

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Beyond the need to preserve as much flexibility as possible for Indonesia’s negotiators Sudarmono had a further reason for not telling Newsom too much. During their meeting Sudarmono paused to reveal “in very serious tones” some information the government had just received. According to Sudarmono, an Indonesian ambassador had reported that US representatives had been saying that following consultations with the US Indonesia “had backed away from positions it had developed with other states”. Such stories, Sudarmono told Newsom, were “very unhelpful”, referring not only to the delicate state of negotiations between Indonesia and the US but also, the ambassador assumed, to his own position within the government. Newsom was quick to assure Sudarmono that the information reported to the government “was not [the] position we were taking in discussing our conversations with Indonesia”. US officials may, however, have been at least slightly presumptuous in some of those conversations. On 6 March Satya Nandan reported that members of the US delegation had told him “that they had the impression, if not an understanding with the Indonesians, that they would agree with the basic elements in the proposals [and that] for the Indonesians it was just a question of timing of their announcement since they had taken a hardline in the past and it was very embarrassing for them to make too rapid a turnabout”.37 The US representatives referred to by Sudarmono may have said something similar. In any case, the Indonesians had suffered precisely the sort of embarrassment they had been trying to avoid ever since they began negotiating with the US. They were in no mood to finalize an agreement. Sudarmono told Newsom that there was little chance of a meeting between Indonesian and US officials before the Geneva session unless a member of the US delegation was prepared to stop in Jakarta on his way to the conference. In this unpromising environment the British attempted to carry out the Americans’ request that they try to encourage the Indonesians to reach an agreement on archipelagos and straits. On 8 March the head of chancery in the British Embassy called on Suffri Yusuf, who was about to go to Geneva as a member of the Indonesian delegation, to urge that Indonesia accept a package that included the UK’s draft articles on straits transit. Suffri “thought there was a reasonable basis for a package agreement at the conference” and “commented that they would like to combine [the British straits articles] with those of the socialist countries”.38 Three days later the British ambassador, Sir Willis Combs, raised the matter again when he called on Mochtar. Mochtar was not in a receptive mood. He complained about how “difficult and inflexible” the Americans were and expressed his bitterness about the way they continued to insist that the US would support the archipelagic concept only after Indonesia supported the US position on straits. Why, he wondered, shouldn’t the US deal directly with the straits states (presumably he had Spain, Morocco, Iran, and a number of other countries in mind rather than Indonesia) rather than place Indonesia in such a difficult position? He had no desire to cut off negotiations with the maritime powers entirely. He

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revealed that the delegation’s “instructions…allowed them to seek a compromise with the maritime countries”. But the Indonesians would take great care not to do anything that would let down the straits states or would even arouse their suspicions. He told Combs that “straits countries would notice at once if Indonesia were in conference with all the maritime powers”. For this reason he asked whether the British might act as a link between Indonesia and the maritime powers at Geneva. Combs conveyed all this to the Foreign Office with the suggestion that because Mochtar himself had given the impression that he thought he was being indiscrete it would be better not to mention to the Americans the views he had expressed about them.39 That appears to be what happened, for the US Embassy simply reported that “Combs got the impression [that] Mochtar was…asking that [the] maritime powers not attempt to push Indonesia into any position which might embarrass it in [the] Third World camp”.40 Thus did British diplomacy help to keep alive the possibility of some sort of agreement at Geneva. It was however only barely alive. When, on 15 March, Newsom called on Mochtar yet again the ambassador was left wondering what the Indonesians had in mind.41 On the one hand Mochtar told Newsom that Indonesia hoped to reach agreement with the maritime powers on a larger package that included the archipelagic concept. On the other he again raised the possibility that the Indonesians would try to rely on support from the G77 if they could not reach a satisfactory accommodation with the maritime powers. He commented that he expected that the outcome of the session could depend on the votes of the LLGDS. He even raised the possibility that in order to win their support Indonesia might be willing to allow those states access to seabed resources in Indonesia’s archipelagic waters. Almost certainly this remark was intended to put pressure on the US. It is difficult to imagine the Indonesian government ever accepting any provision that would so gravely undermine the principle of Indonesia’s sovereignty over everything in and under its archipelagic waters. But it was a sign of Mochtar’s desperation at this time that he was prepared to mention it. At this point, at least to the outside observer, there was no certainty about what path the Indonesians would take. *** By the time Mochtar spoke with Newsom several members of the Indonesian delegation had already been in Geneva for a few days. Their mission was to discuss a possible package deal with other members of the G77 before the session began on 17 March. Though he was the head of the delegation, Mochtar planned to make only brief visits to Geneva because he was so heavily involved in steering the new law on political parties through parliament. The deputy heads of the delegation were Sudarmono, Djajadiningrat, Anwar Sani, and Abdullah Kamil. Sudarmono, so Mochtar had told Newsom, would not arrive until early April because he

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had to take part in a commanders’ call at the end of March.42 Even after his meeting with the air marshal on 5 March Newsom took comfort in the expectation that Sudarmono would “head [the] delegation through [the] most critical period, although he will continue to be under political restraints from home”.43 Even though the session was just days away the Americans wanted to take Sudarmono up on this suggestion that a member of the US delegation visit Jakarta on his way to Geneva. There was a great deal to talk about, as the Americans were happy to use the UK articles as the basis for negotiation on straits passage and were coming around to the idea of considering archipelagos and straits as part of a larger package.44 The Indonesians, however, suggested that because several officials had already left for Geneva and because of the embarrassment caused by reports (apparently there were several) of Indonesia reaching agreement with the US it might not be useful to make such a visit.45 It would of course be possible to meet in Geneva. As was now obvious, however, the Indonesians would not enter into any consultations that might jeopardize their standing in the G77 and the non-aligned movement. After all, whatever the dynamics of the conference, they would need the support of the other members of those groups in their campaign to gain international recognition of the archipelagic principle.

CHAPTER 13

Geneva 1975 1975 Geneva

On 17 March 1975 President Amerasinghe began the Geneva session by reminding the delegations that at the end of the previous session they “had agreed that the stage of general debate and general statements had been concluded and that from the outset the current session should be devoted to negotiations on issues of substance”.1 As it happened, the delegates came prepared to engage in serious negotiations. Not even the sensational news during the first few days of the session that the Central Intelligence Agency had recovered part of the wreck of a Soviet submarine from the depths of the Pacific using a ship ostensibly conducting seabed mining distracted the delegates from getting down to work.2 The Second Committee immediately began a second reading of Part 2 of the Main Trends paper. The plan was to spend just two weeks on the second reading and to devote the remainder of the session to intensive negotiation. The chairman of the Second Committee, Reynaldo Galindo Pohl of El Salvador, who had taken over the chairmanship from Andrés Aguilar, set the committee—and indeed the whole conference—the goal of “finding general agreement on the basic items” before the conference by the time the session closed on 9 May.3 The Indonesian government sent a large delegation to Geneva. In addition to Mochtar and the four vice chairmen there were seventeen other members, among whom were Hasjim Djalal, Nugroho Wisnumurti, and Colonel Trihardjo.4 The available record of their activities during the Geneva session is much sketchier than in the case of the Caracas session. This is because in an effort to encourage compromise even more of the conference’s work took place in informal meetings than at Caracas. The Second Committee in fact held only two formal meetings. In addition to informal meetings organized by the conference secretariat there were numerous meetings of the regional, special interest, and private groups. During the first month of the session the most important of all these groups as far as the Indonesian delegation was concerned was, as it turned out, a private group that did not deal with archipelagic states and that, moreover, the Indonesians were not invited to join. 289

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THE STRAITS DISCUSSIONS By the first week of the session at the latest the Fijian and British delegations had decided to establish an informal private group focussed entirely on the question of straits used for international navigation.5 These delegations had taken relatively moderate positions on this question. During the Caracas session the Fijians had resubmitted a slightly revised version of the articles based on the innocent passage regime that they had introduced during the final session of the Seabed Committee.6 The British, as we have seen, had submitted articles that upheld the “freedom” of “transit passage” but went some way towards protecting the rights of straits states. Taking their respective articles as the starting point, the Fijians and British were determined to draft a set of articles that would satisfy the interests of both the straits states and the maritime powers. They viewed the question of straits passage as crucial to the success of the conference. US representatives had said over and over again that they would never accept a convention that recognized an extension of the width of the territorial sea to 12 miles unless that was accompanied by an acceptable passage regime. The Fijians had a further reason for taking action. “We took the initiative on the straits regime,” Satya Nandan explained in a report to his government, “in order to facilitate agreement on the archipelagic sealanes passage since the two have now become inter-linked, e.g. passage through Malacca straits leads into passage through the Indonesian archipelago. We also felt that a compromise solution on straits will help Indonesia and the maritime powers to be more flexible on archipelagic passage.”7 Once agreement was reached on a straits passage regime, so they hoped, it would be possible to use that regime as the model for archipelagic sea lanes passage. The Fiji-UK straits group, which was chaired jointly by Satya Nandan and Harry Dudgeon, had no official standing but because it was a private group the co-chairmen were free to ask whomever they pleased to be members. While trying to make the group representative of different regions, they only invited delegations that they regarded as likely to take a moderate position on straits passage to join the group. The initial membership was made up of Argentina, Bahrain, Denmark, Ethiopia, Iceland, Italy, Kenya, Lebanon, Nigeria, Singapore, the United Arab Emirates, and Venezuela as well as Fiji and the UK. The co-chairmen did not invite either of the superpowers nor did they invite those straits states most strongly committed to articles based on the innocent passage regime such as Spain, Yemen, Iran, Morocco, Malaysia, and Indonesia. The group held its first meeting on 25 March. By the end of this meeting the members of the group had agreed “to continue work on the basis that there should be a regime for straits which was separate from the regime of innocent passage applicable to the territorial sea in general”. This of course was the approach taken in the UK’s draft articles. But there also appears to have been an understanding at this first meeting that any articles drafted by the group would have to go further than those articles did in protecting

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the interests of states bordering straits. After this meeting the group met several more times during lunch breaks. During this time the co-chairmen added Australia, Bulgaria, and India to the group.8 As the group’s work progressed the co-chairmen made a point of consulting with states that were not part of the group. The British kept the Americans and Soviets well informed about the state of discussions, while Nandan did the same with a number of delegations including Indonesia, which had a special importance because of “the link with the question of archipelagic States”.9 During the early stages of the session there was an important development that facilitated the group’s work. Previously the straits states had had strong support for their position from the G77 but gradually some members of the G77 that were not themselves straits states began to believe that when it came to straits passage they had more in common with the maritime powers than with the straits states. Most notably, Iraq was wary of giving Iran too much control over the Straits of Hormuz, while Algeria had the same concern about the control Morocco and Spain might gain over the Straits of Gibraltar. “Support for unimpeded transit of straits…is increasing,” the US delegation reported on 3 April, “and [the] number of vocal opponents is decreasing.”10 Suddenly there was some hope that the session might result in broadly acceptable articles on straits passage. The conference as a whole, however, was descending into gloom. Already by early April many delegates were complaining that the conference lacked direction. The main problem lay in the Second Committee. The committee had completed a second reading of Part 2 of the Main Trends paper by 4 April but this exercise had brought the committee no closer to preparing a negotiating text. On 4 April the committee established informal consultative groups dealing with a number of different issues but this step only served to fragment the committee’s work. According to a close observer of the Geneva session, Edward Miles, the problem was accentuated by the poor leadership of the committee’s new chairman, Galindo Pohl.11 Whatever the source of the problem, there was growing unease about what was happening in the Second Committee. Until the Second Committee (“the pivot and centre of the Conference”, Amerasinghe called it12) had made at least some progress towards reaching an understanding on such basic questions as the width of the territorial sea the other two committees could do little. Nandan’s view was that without a basic negotiating text “the conference was in jeopardy” and everything the Fijians had been trying to achieve in relation to archipelagos would come to nothing. But he believed he saw a way out of the impasse. “I, as rapporteur of the Second Committee,” Nandan wrote, “began to propagate the idea” that the chairmen of the committees “should be asked to prepare a single negotiating text.”13 On 7 April matters came to a head when the General Committee met to discuss how to deal with the problem facing the conference. Amerasinghe proposed that negotiations be conducted by a small group made up of representatives of the various regional groups.14 Several delegates vigorously opposed this proposal because they were not prepared to have their views represented by delegates of

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other governments that might well hold diametrically opposed views on matters vital to their national interests. In many cases the divisions between landlocked and coastal states and between straits and non-straits states within a region were far more important than those between regions. During the debate the head of Singapore’s delegation, Tommy Koh, made a proposal along the lines Nandan was promoting. Referring specifically to the Second Committee, he suggested that the chairman of that committee “consider drawing up a text on the basis of which negotiations might be conducted”.15 At the end of this meeting Amerasinghe promised to meet with the committee chairmen and then to report back to the General Committee. On 15 April, as delegates became increasingly desperate to salvage something from the remaining four weeks of the session, Amerasinghe presented a new proposal to the General Committee. Picking up on Koh’s proposal, he suggested that the each of the committee chairmen prepare “a unified text” in consultation with the officers of his committee. Some delegations had some misgivings about the proposal (for example, China and the US suggested that there was no rush to prepare such a text), but many welcomed it and none opposed it. In an effort to reassure those who were worried about the procedure Koh told the other delegates that “what he had in mind was not a compromise or a negotiated text but a text to be used by the Committee as a basis for negotiation. Its content would not in any way be binding on delegations, which would be free to submit amendments.” In summing up the debate Amerasinghe too emphasized that the “single negotiating text” (the term Koh had used in his statement) would not commit anyone. On 18 April the plenary formally endorsed this method of resolving the conference’s difficulties. The president again went to great lengths to emphasize the informal nature of the texts to be drafted by the chairmen. The texts, he said, “would not prejudice the position of any delegation, and would not represent any negotiated text or accepted compromise”.16 Nevertheless, the delegations fully understood how much power they were giving the committee chairmen. The negotiating texts prepared by the chairmen would almost certainly shape the future course of the conference. According to Nandan, Galindo Pohl had been willing to assume responsibility for preparing the Second Committee’s negotiating text only because Nandan had assured him that he, Nandan, would undertake the actual task of preparing the text.17 In fact, Nandan was already drafting a negotiating text by this time. Miles reports rumours that Nandan had begun drafting such a text as early as 7 April at the request of the Singaporeans, who wanted to pre-empt the Evensen Group, a highly influential private group chaired by Jens Evensen of Norway that was drafting articles on the economic zone that the LLGDS regarded as biased in favour of coastal states.18 Two other sources including a letter Nandan wrote show that he was busy preparing a negotiating text before the plenary meeting on 18 April.19 The plenary in effect endorsed the work he was already doing.20

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Following the plenary Nandan intensified his efforts to craft a text that would not only gain as wide acceptance as possible but also achieve Fiji’s goals at the conference. The task he had already begun involved a difficult balancing act. On the one hand, he had the freedom to draft the text according to his own ideas of what it should contain. On the other, however, he knew that unless it met the aspirations of the great majority of delegations as well as of certain powerful delegations it would immediately be rejected. To prepare the text he needed to have a precise understanding of what other delegations wanted and, more important, what they would be prepared to accept. Exactly what they were prepared to accept depended not only on the precise wording of individual articles but also on the overall package of articles. Ultimately what mattered was that package, for only when they looked at the whole package would the delegations be able to decide what they could and could not accept. One crucial component of the package was already, at least as far as Nandan was concerned, pretty much in place on the day of the plenary meeting. On 18 April, after a total of eight meetings, the private group that he co-chaired with Harry Dudgeon finalized its draft articles on straits used for international navigation.21 These articles were modelled on those the UK had submitted at Caracas. Most notably, they adopted the definition of transit passage in the UK articles: “Transit passage is the exercise…of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait….” In a number of respects, however, the private group’s articles went further than the UK articles had in protecting the interests of straits states. First, while the UK articles had prohibited ships and aircraft exercising the right of transit passage from engaging “in any activities other than those incident to their normal modes of transit”, the private group’s articles explicitly limited the scope of the phrase “normal modes of transit” by requiring ships and aircraft to “refrain from any activities other than those incident to their normal modes of continuous and expeditious transit”. Second, the private group’s articles expanded the list of matters related to transit passage that the straits states could regulate. Thus straits states could make laws and regulations related not only to pollution but also to the prevention of fishing and the enforcement of customs, immigration, and sanitary regulations. Third, the private group’s articles contained an ingenious solution to the vexed question of whether or not straits states had to have the IMCO’s approval before designating sea lanes or prescribing traffic separations schemes. While Fiji’s straits articles stated that a straits state “shall take into account…the recommendation of competent international organizations”, the UK articles, in sharp contrast, stated that straits states must gain the approval of such an organization. The private group’s text steered a middle course between these two approaches. It required a strait state to refer proposals to “the competent international organisation” but that organization, the relevant article continued, “may adopt only such sealanes and separation schemes as may be agreed with the strait State”. This effectively

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gave straits states the power to veto any decision the organization might make concerning sea lanes and traffic separation schemes. Finally, the private group further emphasized the authority of the straits state by inserting a completely new article, article 9, which declared that the passage regime described in the other articles “shall not in other respects affect the status of waters forming such straits (nor of the seabed, subsoil and superjacent airspace thereof)”. The result of all these changes to the original UK text was the compromise both the Fijians and the British had been hoping to achieve. Nandan noted that while neither Indonesia nor the Philippines had been members of the private group “Indonesia has indicated that it could accept the text in large measure as a compromise for straits”.22 His consultations with the Indonesians had in fact contributed to the crafting of that compromise. They had, most notably, made it clear that they would never accept a provision explicitly allowing submarines to transit while submerged.23 The reference to “normal modes of transit” satisfied both the Indonesians and the maritime powers. All understood that those words allowed submerged transit. Nandan incorporated the private group’s articles into the Single Negotiating Text almost word for word. He made article 9 of the private group’s text the very first article (article 34) in that part (part II) of the SNT/Part II dealing with straits used for international navigation. And he went even further in emphasizing the authority of the straits state. The passage regime, the article now read, “shall not in other respects affect the status of the waters forming such straits nor the exercise by the strait State of its sovereignty or jurisdiction over such waters and their air space, bed and subsoil”.24 Aside from these changes and some minor editorial changes, however, Nandan left the private group’s articles just as they were. Thus, once the private group finalized its straits articles, Nandan not only was free to devote much of his attention to the archipelagic question but also had what he regarded as the key to resolving that question. Whereas he drafted the articles dealing with straits passage as co-chairman of a group of delegations, he did not rely on any negotiating group to deal with the question of archipelagos. Instead, as Tommy Koh explains, Nandan “took it upon himself to negotiate a compromise text between the archipelagic States, on the one hand, and the major maritime powers and certain affected neighbouring States, on the other”.25 Exactly how he came to do this is a complex story involving not only Nandan, the archipelagic states, the maritime powers, and Indonesia’s neighbours but also Reynaldo Galindo Pohl.

THE ARCHIPELAGIC DISCUSSIONS Up to 18 April the Indonesians appeared to have had two methods of resolving the archipelagic question. The first was to reach an understanding with the Americans,

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while the second was to bypass the Americans and to rely instead on support from the Third World and other countries sympathetic to their cause. During the early stages of the Geneva session the Indonesians did not entirely abandon the first possibility but they certainly put it on hold. Early in the session the Americans let it be known via the British and Fijians that they would be happy to talk with the Indonesians but they did not respond. During his brief time in Geneva, from 3 April to about 11 April, Mochtar was reported as having conversed with an American on just one occasion. That occurred about 6 April when Mochtar approached John Stevenson at a diplomatic reception to express his regret that his government had been unable to receive a visit from John Norton Moore before the start of the session. He referred particularly to the embarrassment Indonesia and especially Sudarmono had experienced as a result of the reports that US officials had been saying that Indonesia had reached agreement with the US. In light of this event he suggested that the two delegations probably “should move slowly in further bilateral negotiations” and added that “in any event [the] conference need not resolve archipelago issues at this time”. Stevenson denied that US officials had been making the statements Mochtar referred to and argued that it was crucially important to try to resolve the archipelagic question at the Geneva session. “It would,” Stevenson told Mochtar, “be very difficult and in our view undesirable to resolve [the] territorial sea and economic zone issues without dealing with straits and archipelagoes”.26 At that point their conversation was interrupted; Mochtar left Geneva without holding further discussions with the Americans. Thus, instead of trying to reach an understanding with the Americans, the Indonesians concentrated their efforts on the second method of resolving the archipelagic question. As Mochtar and other Indonesians fully understood, it would be risky to try to depend entirely on support from other Third World countries and other sympathetic states. Any resolution of the archipelagic question that did not include the superpowers might well prove to be meaningless. But at least for the time being the Indonesians saw no advantage, and possibly great harm, in actively pursuing an accommodation with the US. It was better to wait and see how things developed during the session. The plenary of 18 April changed the dynamics of the Geneva session for the Indonesians as it did for all the other delegations. They could no longer hold back, for one way or another there would be a negotiating text at the end of the session. In the case of issues being considered by the Second Committee the best way to shape the content of that text was to work closely with Satya Nandan, since he would decide what it included. Nandan would try to draft provisions that were acceptable to a wide range of delegations but those delegations did not have to be seen to have agreed with each other. Thus, for example, the Indonesians might be able to reach agreement with the Americans without any need for an open declaration or formal understanding.27 What would matter for both the Indonesians and the Americans, as for all the other delegations, was simply whether

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they accepted the package. Nevertheless, it was vitally important for delegations to talk not only with Nandan but also with one another. Nandan would certainly take into account the results of any discussions between delegations, whether these were in the form of actual texts (Hollick notes that after the plenary “the process of drafting texts for submission to the chairmen began in earnest”28) or simply verbal reports. The final weeks of the Geneva session were therefore filled with an immense number of meetings. In this new environment the Indonesians not only met several times with other members of the group of four archipelagic states (and presumably with delegations from neighbouring states) but also had their first meeting “of substance” with the Americans during this session.29 The chain of events that occurred in the final weeks of the session is best understood by starting with this meeting with the Americans. *** The meeting with the Americans took place just a few days after the plenary, probably on 21 April. At this meeting were, on the Indonesian side, Sudarmono, who had taken over as leader of the delegation following Mochtar’s return to Jakarta, Anwar Sani, and Colonel Tjipto Wignjosapoetro, a senior official in the Department of Agriculture, and, on the US side, John Norton Moore, Stuart French of the Defense Department, and Admiral Morris. Sudarmono was under far greater constraints than he had been during his previous meetings with Moore. At the diplomatic reception Mochtar told Stevenson that “there is considerable rivalry among senior Indonesian officials” and that the reports that Sudarmono had reached agreement with the Americans were being used against him.30 At the very least, as we have seen, the incident was being used to demonstrate the folly of rushing into an agreement with the US. At the same time, President Suharto had reduced Sudarmono’s room to manoeuvre by telling the chairman of the US Joint Chiefs of Staff, General George Brown, at a meeting in Jakarta earlier in the month that “Indonesia hoped that any special rights through its archipelago could be worked out on a bilateral basis with such countries as [the] U.S.”31 Sudarmono fully understood that such an arrangement was completely unacceptable to the US—he readily acknowledged this when he spoke with Newsom immediately after Suharto’s meeting with Brown—but he could not agree to any text that would enshrine in a convention the rights the Americans wanted without contradicting the president. One further constraint on Sudarmono was that the four archipelagic states were still a very long way from agreeing on a new text dealing with archipelagos. For all these reasons he had to tread with extreme care when he met the Americans. Sudarmono alluded to the problems he faced in his opening statement.32 “He indicated”, according to the US record, “that [the] primary concern of Indonesians at this time, in addition to achieving recognition of [the] archipelago principle,

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was to avoid political complications which could result internally, not externally, if their positions on navigation issues reversed” and added that he had “little expectation of real results from the Geneva session”. Moore responded that it was in fact possible to produce results, arguing that an agreement between the two delegations, even one that left certain figures blank, “would have great impact”, but Sudarmono apparently did not pick up on this suggestion. He did, however, embrace Moore’s suggestion that a small number of archipelagic and maritime states discuss the issues at a meeting chaired by Galindo Pohl. He himself proposed that he approach Galindo Pohl to ask him to invite several of such states “to a series of private discussions designed to give the chairman some guidance on a possible single text”. He was, it appears, unaware that the Bahamians had, with the Americans’ support, already asked the chairman to hold such a meeting. In any case, such a meeting suited his purposes perfectly, for it would enable the Indonesians to put forth their ideas without openly committing themselves to any position. Once the two delegations had decided on this course of action they moved on to discuss specific issues but they achieved nothing. Sudarmono was in no position to agree to anything until the four archipelagic states had finalized their text, which he said “would be forthcoming soon”. When he sounded the Americans out (as had Mochtar and Djalal on other occasions) on whether the US might be willing to enter into a bilateral agreement with the Indonesia on archipelagic principles and transit “in the absence of a successful treaty”, all three of them “reminded Sudarmono that [the] US position against this is clear, firm, and unchanging”. Soon after this exchange the meeting ended. The meeting with Galindo Pohl took place on 23 April. Attending the meeting were representatives of three archipelagic states—Fiji, the Bahamas, and Indonesia—and the three biggest maritime powers—the US, USSR, and UK. Galindo Pohl began by explaining that he hoped to get advice on the question of archipelagos “with an eye on the single negotiating text on Committee II subjects which he is preparing”. But he received little advice. Before the meeting the Bahamians had given Galindo Pohl a draft text on archipelagic states that was the result of discussions they had had with the Americans. He told the meeting that he had just received a text on archipelagic states but when the Indonesians asked him who had given him this text he avoided giving them an answer. The Indonesians (the source does not give their names) then announced that the group of four archipelagic states “had made good progress towards producing a new unified text” and asked that the meeting adjourn until the group had completed its text. As the British representative, Dudgeon, observed, the other representatives were “left with little alternative but to accept”. There was some discussion about whether to invite the Philippines to the next meeting but otherwise the Indonesians’ request brought the meeting to an end.33 Contrary to the impression the Indonesians gave at this meeting, the group of four archipelagic states was struggling to agree on a text. At a meeting sometime

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before 17 April the Indonesians had proposed that foreign ships be given the right of transit passage through sea lanes and innocent passage elsewhere in archipelagic waters but at some point the Philippines representatives had balked at such a change.34 The group apparently held several other meetings before and right after the meeting with Galindo Pohl. “Finally after protracted meetings”, according to Nandan, the group failed to agree on a negotiating text because both the Indonesians and the Filipinos insisted on restricting the transit of nuclear-powered submarines and vessels carrying nuclear weapons to sea lanes.35 Remarkably, however, on 28 April, the day before Galindo Pohl was to convene another meeting about archipelagos, either the group or certain members of it circulated a text that purportedly represented the position of all four states. The text, labelled “W43” by the British, was heavily based on the draft articles (L.49) that the four states had submitted during the Caracas session. In particular it retained the definition of an archipelago in L.49, the most notable feature of which from the point of view of the maritime powers was the absence of any “objective” criteria. But it differed from L.49 in several important ways, several of which reflected the draft articles the Indonesians had finalized in early March:36 1. W43 differed from L.49 in the way it dealt with the problem created by Malaysia’s insistence on certain rights in the waters between West and East Malaysia. The Indonesians had, as we saw in the previous chapter, decided to accept the Malaysian amendment. The other members of the archipelagic states group, none of whom faced the same problem the Indonesians had with Malaysia, supported this move. Thus the relevant provision in W43 included the Malaysian amendment word for word.37 2. Whereas L.49 made no mention whatsoever of the interests fishermen of other states might have in an archipelagic state’s waters, W43 at least provided a hint of how the archipelagic states might deal with the insistence by Singapore and Thailand that their fishermen have access to Indonesian waters. The Indonesians had recently decided that they would agree to some form of recognition of the fishing interests of neighbouring states being incorporated into the convention. The question was precisely what should be recognized. As the Indonesians saw it, the Thais might enjoy “traditional fishing rights” but not the right (“the traditional right to fish”) to fish anywhere where they had once had that right even if they had not actually exercised it. It appears that this issue remained unresolved on 28 April but the text indicated that a resolution was imminent. It included an article titled “Traditional fishing rights of immediately adjacent neighbouring states”. The article contained nothing but a note that a provision would be inserted but at least the title implied in-principle recognition of “traditional fishing rights”. Moreover, it restricted that recognition to “immediately adjacent neighbouring states”. This was just as important for the Fijians as it was for the Indonesians, since neither

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wanted the convention to contain wording that might enable the Japanese to claim traditional fishing rights.38 Whereas L.49 had given the ships of all states “the right of innocent passage through archipelagic waters”, W43 restricted the exercise of that right to “all routes customarily used for international navigation in the archipelagic waters”. This of course followed the Indonesian draft articles. Like L.49, W43 declared that “an archipelagic state may designate sealanes suitable for the safe and expeditious passage of foreign ships”. Unlike L.49, however, it established “the right of sealanes passage”, which it defined as “navigation…solely for the purpose of continuous and expeditious passage”, and it backed up this right with a provision that guaranteed that there would be sea lanes where that right could in fact be exercised: “If an archipelagic State does not designate sealanes, the right of sealanes passage may be exercised through the routes customarily used for international navigation through the archipelagic waters”. This provision gave real meaning to what might otherwise have been a hollow declaration. It also gave an archipelagic state an incentive to designate specific sea lanes, for until it did so foreign ships would enjoy the right of sea lanes passage along all routes “customarily used for international navigation”. An extremely significant aspect of these provisions was that they used the word “right” rather than “freedom”. In this way W43 subtly disassociated passage along sea lanes from passage on the high seas and also from the type of passage through straits envisaged by the maritime states and the private group on straits. Moreover, at least in Indonesian thinking, the word “right” placed an obligation on foreign ships that “freedom” did not. “‘Rights of navigation’,” Djalal explained a few years later, “means that you may have the right but not necessarily total freedom; there are some rules and regulations that you have to follow. We recognize the right, but the exercise of that right must be under certain rules and regulations….”39 Unlike L.49, W43 specified the width of sea lanes. Following the Indonesian draft articles, it stated that they would be whichever was the narrower of 20 miles or 30 percent of the width of the relevant waters “unless the archipelagic State designates wider sealanes”. Like L.49, W43 contained a provision that effectively gave archipelagic states the right to deny certain types of ships the right of innocent passage outside these sea lanes. But, like the Indonesian articles, it was much more specific about which types of ships might be subject to this provision. Thus it gave archipelagic states the right to restrict “to the designated sea lanes” the passage of warships (including submarines), nuclear-powered ships, ships carrying nuclear weapons or dangerous substances, fishing vessels, research and hydrographic vessels, and tankers. It also spelled out more clearly than L.49 did the obligations of ships passing through archipelagic waters or along sea

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lanes, though unlike the Indonesian articles it did not include a detailed list of prohibited activities. 7. W43 went further than L.49 in emphasizing the archipelagic state’s sovereignty over its waters. Following the Indonesian text, it included an article asserting that none of the articles dealing with the passage of foreign ships “shall be construed as limiting or prejudicing the sovereignty of the archipelagic State over its archipelagic waters, including the sealanes”. 8. The final noteworthy difference between W43 and L.49 concerned aircraft. L.49 had of course made no reference to aircraft whatsoever. Like the Indonesian articles W43 did refer to aircraft but unlike the Indonesian text it did so only in an article dealing with responsibility and compensation for damage. That article used the words “ship or aircraft” several times. Thus, for example, one provision stated that “If any ship or aircraft whilst exercising the right of innocent passage through archipelagic waters or the right to transit passage through the sealanes causes any damage or loss” it would be liable to pay compensation. This wording implied that aircraft had the rights of innocent passage and transit passage even though none of the articles setting out those rights even mentioned aircraft. This inconsistency almost certainly reflected the inability of those who drafted the text to craft an internally coherent document in time for the second meeting with Galindo Pohl. While W43 made significant concessions to neighbouring states, it made few to the maritime powers. It did give foreign ships the “right” to pass through archipelagic waters but it also enabled archipelagic states to restrict the passage of many types of ships including warships to sea lanes, just as L.49 had. These sea lanes were (from the perspective of the maritime powers) extremely narrow. Moreover, it contained no meaningful provisions regarding aircraft. For the archipelagic delegations themselves the passage provisions were the most contentious aspect of the text. They represented the views of the Filipinos and Indonesians but not those of the Fijians. How then did the text come to be circulated as if it represented the view of the four archipelagic states when the Fijians could not accept some of its most important provisions? The explanation may lie in a momentous decision Nandan had just made. “By this time,” he wrote a few weeks later, “I had already decided that the only way to deal with [the Indonesians and Filipinos] was to present them with a fait accompli through the single negotiating text which I was already engaged in drafting for the Chairman.”40 Thus it appears he went along with the group of four’s text because he knew that he could simply ignore it if he wanted to. Ultimately he was free to rely on his own judgement about what the Second Committee’s negotiating text should contain. In the meantime there was no point in arguing with the Indonesians and Filipinos. The meeting with Galindo Pohl on 29 April, this time including Philippine and Japanese delegates, focussed on the text circulated the previous day. All four of the

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maritime state delegations declared that the text was “totally unacceptable as a basis for discussion”.41 They attacked it for its lack of specific criteria for designating archipelagos and what they regarded as its completely inadequate provisions concerning passage. They received welcome support from the Bahamian delegate, Paul Adderley, who made what the Americans described as a “very helpful intervention” in which he referred particularly to the need for “objective criteria” in the definition of archipelagos. The group then decided to hold one more meeting the next day.42 While the Indonesians had spent much of the session avoiding the Americans, the Bahamians had been in intense discussions with them for several weeks. Whereas the Indonesians had focussed much of their attention on the question of passage, the Bahamians had been most concerned to ensure that any archipelagic provisions would make it possible for them to enclose all their islands within a single system of straight baselines. By this point in the Geneva session the Americans had assured them that they would support criteria that met the Bahamians’ needs. The Bahamians had in turn promised to support the US position on straits and archipelagic passage. On 29 April, after the meeting with Galindo Pohl, the Bahamian delegation showed the Americans a document listing principles on archipelagos that they hoped would serve as an aide-memoire for the chairman. “These, with a few changes, were acceptable” to the Americans.43 Whether the Bahamians then made minor amendments or left the document exactly as it was is unclear. In any case, they finalized the document shortly before the meeting on 30 April. The document bore the title “18 principles for inclusion in archipelagic articles (Bahamas)”.44 As its title suggests, it did not attempt to provide draft articles but instead set out principles that should underpin such articles. The Bahamians based these principles on various texts that had been drafted by the maritime powers and the group of four archipelagic states over the previous couple of years.45 The following principles were particularly notable: 1. There should be articles that “apply only to archipelagic states”. Like W43 (“These articles apply only to archipelagic States”) this wording did not necessarily preclude the possibility that the convention might contain other articles dealing with archipelagos belonging to continental states but made it clear that such archipelagos were an entirely separate issue. As the Bahamians were fully aware, the Americans wanted to confine the discussion of archipelagos entirely to articles dealing specifically with archipelagic states.46 2. There should be “a definition of an archipelago which incorporates the conception that an archipelago be a group of closely interrelated islands or parts of islands, waters and other natural features forming an intrinsic geographical, economic and political entity, which has been historically regarded as such”. This wording closely followed the definition adopted by

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the archipelagic states group except for the greater weight it placed on the historical dimension: the archipelago had both to form an intrinsic entity and to have been regarded as such in the past. There ought to be “a formula of ‘objective criteria’” to determine whether a group of islands could be regarded as being “closely interrelated” (the term used by the group of four archipelagic states in L.49). The Bahamians proposed a formula based on the one submitted by the UK in 1973 but, as the Commentary explains, changed the figures “to embrace the claims of all the potential archipelagic States identified by the participants in the Conference”.47 Specifically, the ratio between land (deemed to include oceanic plateaus) and water should be between 1:1 and 1:9 and the maximum length of the lines “shall be no longer than 80 nautical miles provided there may be a number of such lines not exceeding 2% of the total number which may not be longer than 125 miles”. If a group of islands met these criteria—if, in other words, it could be regarded as an “archipelago” for the purposes of the articles—then, according to a further principle, the archipelagic state could draw straight baselines between the outermost points of the outermost islands and drying reefs of the archipelago and then measure its territorial sea, economic zone, and any other special jurisdictions from those lines. “Within its archipelagic waters the archipelagic state may draw closing lines for the delimitation of internal waters” in accordance with those articles in the convention “dealing with river closings, bay closings and permanent outer harbour works”. The archipelagic states group had not included such a provision in L.49 or W43. Presumably this was because both the Philippines and Indonesia defined all the waters inside its system of straight baselines as internal waters. Regulation No.8 of 1962 had made it clear that the Indonesian government guaranteed innocent passage only in those internal waters that had been high seas or territorial sea under the Territorial Sea and Maritime Districts Ordinance but even so all the waters inside the baselines retained their status as “internal waters”.48 “Subject to provisions for passage through designated sea lanes, all states shall enjoy…the right of innocent passage through archipelagic waters.” Thus, so it appeared, the innocent passage regime applied throughout archipelagic waters not just, as in W43, along those routes customarily used for international navigation. “An archipelagic state shall designate sea lanes and coterminous air corridors for archipelagic passage for ships and aircraft of all states through the archipelago and may restrict archipelagic passage of such ships and aircraft to such lanes.” The meaning of “may restrict archipelagic passage…to such lanes” is far from clear. The Commentary interprets the declaration as meaning that the archipelagic state could restrict passage through the archipelago to the

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sea lanes in exactly the same way as the state could in the regime set out in L.49.49 It seems more likely, however, that the words simply meant that the state could restrict “archipelagic passage”—as distinct from innocent passage—to those sea lanes. Otherwise it is difficult to imagine the US delegation finding the principles “acceptable”. Such an interpretation is also consistent with the following definition of “archipelagic passage”. “Archipelagic passage shall be defined…to mean the exercise of freedom of navigation and overflight in the normal mode of passage solely for the purpose of continuous and expeditious passage through the archipelago.” Adapted from the definition of transit passage drafted by the private group on straits, this definition was entirely consistent with the position taken by the maritime powers. The width of a sea lane could not exceed a certain number of miles or percentage “of the distance between the nearest points of the principal islands bounding the designated lane”. The precise figures were left blank. Regardless of what those figures might be, this provision, if taken literally, would allow an archipelagic state to make a sea lane as narrow as it liked. “Archipelagic passage” would be subject to the “régime of straits”, by which the Bahamians presumably meant the regime for straits passage.50 Similarly, passage through archipelagic waters subject to innocent passage would be subject to the regime of innocent passage in the territorial sea. Applying this principle would of course greatly simplify the task of designing passage regimes for archipelagic waters. “Ships and aircraft while exercising the right of innocent passage and archipelagic passage shall: a) proceed without delay and shall not engage in any activities other than those normally incident to transit; b) refrain from any threat or use of force in violation of the Charter of the United Nations”; and comply with international regulations regarding navigation and pollution. Presumably the Bahamians did not intend to break virtually all existing understandings of the law of the sea by giving aircraft the right of innocent passage, and subjecting aircraft to regulations that only applied to ships, but otherwise this principle simply followed one of the articles drafted by the private group on straits. The archipelagic state had, so it was implied, the authority to designate sea lanes without the approval of any international body. However, the state could not implement any traffic separation schemes for passage through those lanes without the approval of “the relevant international organisation”.

Taken as a whole, the “18 principles” enabled those states made up of islands that were most actively campaigning for archipelagic status to unite their territories and outlined a passage regime that (leaving aside the possibility that it would enable states to restrict passage to sea lanes) fulfilled the objectives of the maritime

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powers. More significantly, in the words of the Commentary, it “facilitated further negotiations between the interested States”.51 But little negotiation took place when the group of archipelagic and maritime states met with Galindo Pohl for the third time on 30 April. According to Dudgeon’s account, the Filipinos “kicked off with a very hard-line statement in which they returned to the sort of line they were taking some years ago with no hint of willingness to compromise. The Japanese, Americans and Soviets made tough statements on the other side of the argument.” For the maritime powers the “only ray of hope” was that the Bahamians circulated their paper “and spoke to it in very moderate terms”. The British had some misgivings about the Bahamians’ paper. It would not allow dependent territories to claim archipelagic status, the inclusion of a maximum land-to-sea ratio of 1:1 made it impossible for the UK to become an archipelagic state, and some of the wording was vague. But Dudgeon mentioned none of these at the meeting. Instead, so he reported, he gave the paper “a warm welcome” and said that while there were a couple of points that his delegation would find hard to accept “it nevertheless seemed a reasonable basis for future work on the problem”. His report made no mention of how the Filipinos and Indonesians reacted to the “18 principles”. Bringing the meeting to a close, Galindo Pohl said that he now had a much better understanding of the different positions on the issue and that he “would take them into account in drafting his unified text”. Afterwards the maritime group agreed among themselves “that there was no more to be done on the subject at this session”. Dudgeon was highly critical of the Filipinos. His hope was that they would now realize that they would never gain recognition of the archipelagic principle if they continued with “their tough line” and that their only chance would be “to come more closely into line with the more moderate position adopted by Indonesia and Fiji”. As he saw it, “there is some hope the Bahamas’ draft might provide a basis for negotiation at a future date if the Filipinos showed any disposition to budge”.52 For the time being, however, negotiation in meetings of the sort Galindo Pohl had convened or even like those the Indonesians had had with the Americans was irrelevant. The question of archipelagos was now in Satya Nandan’s hands—he would decide what went into the negotiating text.

THE ARCHIPELAGO ARTICLES During the final weeks of the session, as Tommy Koh later put it, Nandan was “doing one of his famous shuttle diplomacies on the archipelagoes”.53 His main method of working was to talk first with those who held one view and then with those who had the opposing view. He would try to find formulas that both could agree to, or at least could live with, but if that was not possible he would make the final decision about what to include. There is no record of the innumerable

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informal conversations he had with fellow delegates at all hours of the day and night during the final stages of the session. Nevertheless, analysis of the text he crafted, his reports to Suva, and a variety of other sources gives us an insight into how he went about his work.54

“Archipelagos” The maritime powers were adamant they would not accept any articles that allowed continental states such as India and Greece to claim archipelagic status for archipelagos that were part of their territories. Neighbouring states such as Thailand and particularly Turkey were also opposed to making this possible. The archipelagic states had no direct interest in fighting such claims but because those claims threatened to ruin their chances of gaining recognition of archipelagic states they tried to distance themselves from those claims while also trying to stay on good terms with the states making these claims. In March Nandan had written that “This situation has somewhat embarrassed us [the archipelagic states] because we have friends on all sides”. He knew that the archipelagic states would at some point be “automatically drawn into the controversy once we accept a definition which excludes others”.55 The Indonesians of course had already tried to persuade the Indians to drop their claim but Nandan himself appears to have avoided being drawn into the controversy up to this point. As he drafted the archipelago articles, however, he had to find a solution that upheld the interests of the archipelagic states but did not completely antagonize states such as India. His solution was to devote one part of the Second Committee’s SNT, part VII, to “Archipelagos” and then to divide that part into two sections. The first, titled “Archipelagic states”, contained fourteen articles, while the second, titled “Oceanic archipelagos belonging to continental states”, contained a single article, article 131, declaring that “The provisions of section 1 are without prejudice to the status of oceanic archipelagos forming an integral part of the territory of a continental State”. This article kept alive the possibility that there might eventually be provisions for archipelagos such as the Andaman and Nicobar Islands but did not state what those might be. Nandan had gone as close to excluding such archipelagos as he could without excluding them altogether. Except for that single article part VII was devoted entirely to archipelagic states, the subject of section 1, which contained articles 117 to 130. Definition Article 117 contained the same definition of an archipelagic state that the archipelagic states group had adopted in L.49: an archipelagic state “means a State constituted wholly by one or more archipelagos and may include other islands”. It also contained the same definition of an archipelago as “a group of islands, including parts of islands, inter-connecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an

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intrinsic geographic, economic and political entity, or which historically have been regarded as such”. Nandan ignored the suggestion in the “18 principles” that the group of islands both form an intrinsic entity and have been historically regarded as such. The maritime powers had never insisted on this. What the maritime powers did insist on was “objective” criteria for determining when a state made up of islands could draw straight baselines around all or some of those islands. The UK had wanted criteria that were objective but not designed merely to accommodate particular states. By this point in the session, however, the British appear to have acquiesced to the attempt by the US and the Bahamas to devise criteria unabashedly intended to accommodate the archipelagic claimants, or at least those that really mattered, namely, Indonesia, the Philippines, Fiji, and the Bahamas. The British were unhappy with a land-to-sea ratio that prevented the UK from claiming archipelagic status if it chose to do so but were not going out of their way to oppose such a criterion. Thus Nandan’s task was fairly easy as far as this problem was concerned. Article 118 followed the Bahamian paper in stating that “the ratio of the area of the water to the area of the land, including atolls, is between one to one and nine to one”. And, at least up to a point, it followed that paper in dealing with the other criterion, namely, the maximum length of baselines: “The length of such baselines shall not exceed 80 nautical miles, except that up to ___ per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.” The precise percentage would have to be negotiated at a later stage. Those participating in the archipelagic negotiations knew that an archipelagic state could give itself more baselines that were between 80 and 125 miles long by greatly increasing the number of shorter baselines. The Americans had openly discussed this with the Bahamians during the Geneva session.56 Even so, the percentage of allowable “exceptional” lines was a consequential matter, since adding more short lines inevitably reduced the total area of archipelagic waters, even if only slightly.

Jurisdictions Whatever the final figures, the archipelagic state would (as specified in article 119) measure its territorial sea, contiguous zone, exclusive economic zone, and continental shelf from these straight baselines and (as indicated in article 120) the waters enclosed within the baselines would be called “archipelagic waters”. Nandan streamlined the relevant articles in L.49 to describe (in article 120) the sovereignty the archipelagic state had over its archipelagic waters but did not change the substance of these articles. The state’s sovereignty “extends to the…archipelagic waters…regardless of their depth or distance from the coast” and that sovereignty “extends to the air space over the archipelagic waters, the bed and subsoil thereof, and the resources contained therein”. Making use of one of the principles in the Bahamians’ paper, Nandan also included an article (121) that allowed an archipelagic state to “draw closing

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lines for the delimitation of internal waters” in accordance with other articles dealing with the delimitation of internal waters. Put another way, however, the archipelagic state would no longer be able to define all the waters inside its baselines as internal waters. Thus, for example, the Indonesian government would be able to give Jakarta Bay the status of internal waters but would not be able to do the same for the (much wider) Gulf of Boni in southern Sulawesi. The Gulf of Boni would, just like the Java and Banda seas, be part of the country’s archipelagic waters.

The Malaysia problem The archipelagic states group believed that W43 had given the Malaysians what they wanted. The Indonesians had reluctantly agreed to accept the amendment (L.64) that Malaysia had submitted at Caracas. As Nandan was in the final stages of preparing the archipelagic articles, however, the Malaysians submitted a new version of the relevant article: If the drawing of such baselines results in enclosing an area or areas of the sea separating two or more parts of an immediately adjacent neighbouring State, all rights which that State has traditionally exercised regarding the enclosed area or areas, such as rights, inter alia, relating to navigation, overflight, fishing, the laying of submarine cables and pipelines, and other legitimate interests shall enure and remain unaffected.57 The Indonesians found this formulation objectionable on two grounds. First, depending on the meaning of “all rights” that Malaysia had “traditionally exercised” and “other legitimate interests”, it potentially gave Malaysia virtually carte blanche in the waters in the area between West and East Malaysia. Were it to come into force, so it seemed, it would effectively eliminate Indonesian sovereignty in that area. Second, the first part of the sentence implied, so the Indonesians thought, that Indonesia was responsible for separating East Malaysia from West Malaysia. This was in their view entirely unreasonable. After all, the Anambas and Natuna Islands had been an integral part of Indonesia “for centuries” and the government had drawn its system of straight baselines more than three years before Malaysia came into being. It was hardly fair that Indonesia’s sovereignty over some of its territory should be diminished as a result of the formation of Malaysia.58 For both these reasons the Indonesian delegation was not prepared to accept the latest Malaysian amendment. Nandan had a simple solution to this problem. He inserted the amendment submitted by Malaysia at Caracas into his text—after all, it presumably represented what the Malaysians had wanted at that time—and ignored the latest amendment. Thus article 118(7) of the text read as follows:

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If the drawing of such baselines encloses a part of the sea which has traditionally been used by an immediately adjacent neighbouring State for direct access and all forms of communication, including the laying of submarine cables and pipelines, between two or more parts of the territory of such State, the archipelagic State shall continue to recognize and guarantee such rights of direct access and communication.

The rights of neighbouring states Sometime in the closing stages of the Geneva session the Indonesians and Thais reached an understanding that Thailand would recognize Indonesia’s sovereignty over its archipelagic waters on the understanding that Indonesia would recognize the “traditional fishing rights” of Thai fishermen in those particular parts of the South China Sea where they had already been fishing and that the two governments would work out the details bilaterally. It was also understood that Indonesia would try to accommodate the needs of Thailand’s rapidly growing fishing industry by entering into arrangements that allowed Thai vessels to operate in Indonesian waters. Once this understanding was achieved, the Indonesians, Thais, and Singaporeans submitted a draft article during the Geneva session declaring that “Traditional fishing rights of immediately adjacent neighbouring states in certain areas of the archipelagic waters shall be recognised”. It added that the “modalities” would be worked out by bilateral agreement and that the rights could not be transferred to or shared with third states or their nations.59 Presumably, since the text circulated in the name of the group of four archipelagic states did not contain wording for its article dealing with traditional fishing rights, the three delegations submitted this article shortly after 28 April. The wording of this draft article effectively ignored Japan’s interests in the waters of a number of archipelagic states including Indonesia, the Philippines, and Fiji. The most notable of these interests was access to the Banda Sea tuna fishery. Nandan drafted an article (article 122) that recognized Japan’s interests without in any way acknowledging them as “rights”. Indeed, in one sentence he not only dealt with that problem but also incorporated the draft article from Indonesia, Singapore, and Thailand: “Archipelagic States shall respect existing agreements with other States and shall recognize traditional fishing rights of the immediately adjacent neighbouring States in certain areas of the archipelagic waters.” The first part of the sentence in effect required Indonesia to honour the Banda Sea Agreement but only as long as it lasted—Indonesia would be under no obligation to renew the agreement.60 The remainder of the article referred exclusively to the second part of the sentence. Again adopting the language proposed by the three states, it declared that the exercise of traditional fishing rights “shall, at the request of any of the States concerned, be regulated by bilateral agreements between them” and forbade the transfer or sharing of those rights.

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Passage Following all the recent texts dealing with passage through archipelagic waters, Nandan made the basic distinction between innocent passage and a special regime of passage along sea lanes. Article 123 dealt with the innocent passage, while articles 124, 125, 126, and 128 dealt with “archipelagic sea lanes passage”. In crafting these articles he tried to balance the interests of Indonesia and the Philippines on the one hand and those of the maritime powers on the other. Article 123 ignored the provision in W43 that provided for innocent passage only along normal shipping routes. “Subject to the provisions of article 124, ships of all States, whether coastal or not,” it read, “shall enjoy the right of innocent passage through archipelagic waters, in accordance with the provisions” of the section of the SNT dealing with innocent passage. But article 123 also incorporated the provision in W43 that allowed an archipelagic state to “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”. Archipelagic sea lanes passage, Nandan explained, “is an adaptation to the sealanes of a Fiji/UK straits compromise text”.61 That adaptation involved making as much use of the texts produced by the group of four archipelagic states as possible as well as borrowing elements of the “18 principles” but the articles Nandan had already incorporated into part II of the SNT formed the bedrock of the provisions concerning archipelagic sea lanes passage. The basic concept of archipelagic sea lanes passage was set out in the twelve paragraphs of article 124. According to article 124(1), “An archipelagic State may designate sea lanes and air routes suitable for the safe, continuous and expeditious passage of foreign ships and aircraft through its archipelagic waters.” This closely followed W43 (and L.49) but with the crucial difference that it referred to aircraft as well as ships. Article 124(2) established “the right of archipelagic sea lanes passage in sea lanes and air routes through the archipelago” and made that right available to “ships and aircraft of all States”. This too followed W43 except for adding the reference to aircraft. Article 124(3) then defined archipelagic sea lanes passage as “the exercise…of the rights of navigation and overflight in the normal mode for the purpose of continuous and expeditious transit through an archipelago”. This followed W43 in referring to “rights” rather than “freedom” but differed from it not only by extending those rights to aircraft but also by inserting the phrase “in the normal mode”. The implication that submarines had the right to pass along the sea lanes while submerged was in Nandan’s view “the main distinction between innocent passage and sealane passage in practical terms”.62 Nandan retained, as article 124(12), the article in W43 declaring that if an archipelagic state did not designate sea lanes “the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation through the archipelagic waters”. Whether intentionally or not, 124(12) made no reference to air routes. In any case, this paragraph was fundamental to

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article 124, for without it the archipelagic state would have much less incentive to designate passageways through the archipelago where a more liberal form of passage than that provided under the innocent passage regime would be available. Two paragraphs laid down general principles regarding the designation of sea lanes and air routes. According to article 124(4), these sea lanes and air routes “shall traverse the archipelago and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through the archipelago, and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.” Precisely which routes constituted “all normal passage routes” through, for example, Indonesian waters would have to be determined sometime in the future. The absence of any need to duplicate routes having the same entry and exit points, however, meant that in Indonesia’s case the government would not have to designate as a sea lane the route running between Buru and Seram; another sea lane having the same entry and exit points would be adequate. Closely related to the question of the location of sea lanes was the question of their width. According to article 124(5), “The width of a sea lane shall not be less than ___ nautical miles or ___ per cent of the distance between the nearest points on islands bordering the sea lane.” This differed from the “18 principles” in stipulating a minimum rather than maximum width but followed that paper in leaving the figures blank. This was because of the magnitude of the gap between the maritime powers and the archipelagic states on this issue. According to Nandan, the Americans wanted the sea lanes to be 80 miles wide, while the Indonesians were offering 20 miles. His “guess” was that the Indonesians “would be willing to go up to 40” but that still left a great gap.63 Having designated sea lanes, the archipelagic state could also, according to article 124(6), “prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes”. Except for its application to “narrow channels” rather than sea lanes generally this provision was identical to one in L.49. Unlike the comparable principle in the Bahamians’ paper there was no mention of any international body being involved in the prescription of traffic separation schemes. The question of who had the authority to designate sea lanes and prescribe traffic separation schemes was probably the most difficult one Nandan had to deal with as he shuttled back and forth between delegations. The archipelagic states, he reported, argued that the archipelagic state should only be required to “take into account” the advice of the international body. The maritime powers insisted that that body should have the final say. His solution was simple. Except to change “strait State” to “archipelagic State” Nandan used the same formulation for archipelagic sea lanes passage as the one for straits transit that he had taken from the private group’s paper and inserted into part II of the SNT: “Before designating sea lanes or prescribing traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view

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to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate or prescribe them.” As he put it, this wording gave the archipelagic state the right of veto.64 The four other articles dealing with archipelagic sea lanes passage were taken directly from corresponding articles in part II. The only changes were to replace “transit passage” with “archipelagic sealanes passage”, “strait State” with “archipelagic State”, and “through the strait” with “throughout the designated sea lanes”. Article 125, like article 39 in part II, described the obligations of ships and aircraft exercising the right of archipelagic sea lanes passage. Article 128, like the first four paragraphs of article 41, listed the matters with respect to which the archipelagic state could make laws and regulations concerning archipelagic sea lanes passage. Article 126, like article 43, specified those actions the archipelagic state could not take: “An archipelagic State shall not hamper archipelagic sea lanes passage” nor could it temporarily suspend archipelagic sea lanes passage as it could innocent passage through the territorial sea. Article 126 also required the archipelagic state to “give appropriate publicity to any danger to navigation or overflight within the designated sea lanes or air routes of which it has knowledge”. Finally, article 129 dealt with the particular case of ships and aircraft entitled to sovereign immunity. Like the final paragraph of article 41, it declared that if such a ship or aircraft violated any law or regulation made by an archipelagic state in accordance with article 128, or indeed of any other provision in section 1, and caused loss or damage then the flag state bore responsibility for that loss or damage. One other article applied to innocent passage as well as to archipelagic sea lanes passage. Article 127 prohibited “foreign ships, including marine research and hydrographic survey ships”, from “carry[ing] out any research or survey activities without the prior authorization of the archipelagic State”. This was an adaptation of a provision in the articles on the territorial sea that Fiji had submitted during the Caracas session. It had not been included in W43. Nandan’s reports do not explain why he inserted this provision but presumably it was supported by all the archipelagic states. One critically important feature of the articles dealing with archipelagic sea lanes was that they did not include any provision allowing archipelagic states to require warships to give prior notification or to obtain prior authorization of passage. The archipelagic states group had not, at least not explicitly, included such a provision in L.49, nor had it appeared in W43, but it had featured prominently in the Indonesian draft articles. Those articles, as we saw, required nuclear-powered and nuclear-armed vessels intending to undertake “sealanes passage” to provide prior notification. The US and some other maritime states had of course been providing prior notification of the passage of their warships through the waters covered by Law No.4 but they had done so only informally and as a matter of courtesy. They had never been prepared to accept a

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requirement that they provide prior notification. In any case, they had been providing notification in relation to surface vessels that the Indonesian navy and air force would have easily detected anyway. They had not been notifying the Indonesians of the impending passage of their submarines. At one point in their negotiations with the Indonesians John Norton Moore, as we saw in chapter 10, raised the possibility that a warship travelling along a “passage area” (as the Americans then referred to sea lanes) might be required to provide prior notification if it was forced to deviate from that passage area but since then the Americans had dropped any reference to prior notification even in this special circumstance. Presumably this was because such a requirement would have contradicted their strongly held position that warships should not be required to provide notification or gain authorization before passing through archipelagic waters under the same innocent passage regime applicable to the territorial sea. Nandan himself had regretted this backtracking by US negotiators65 but the articles dealing with archipelagic sea lanes passage placed no requirement of prior notification or authorization on ships of any type in any circumstance. Part VII as Nandan drafted it dealt with aircraft in much the same way. In their draft articles the Indonesians had required “state aircraft” to give prior notification or obtain prior authorization depending on the altitude at which they passed over a sea lane. Nandan knew that the superpowers would never accept such a requirement. This was because, he explained to his government, “they use [military aircraft] for forward surveillance for convoys or as enemy submarine trackers. Notification would diminish their inter-ocean strategic movements” just as it would for submarines and surface warships.66 Article 125 of the SNT did require aircraft undertaking archipelagic sea lanes passage to observe the Rules of the Air established by the International Civil Aviation Organization and to monitor the radio frequency of the appropriate air traffic control authority “at all times” but did not require them to provide any information about their movements. There was one further provision dealing with passage that the Indonesians had wanted that Nandan did not include in the SNT. The SNT did not include the provision in W43 asserting that none of the provisions dealing with the passage of foreign ships could be “construed as limiting or prejudicing the sovereignty of the archipelagic State over its archipelagic waters, including the sealanes”. Nandan’s reports do not explain this omission. The legislative history of the archipelagic question prepared by the UN observes that the articles dealing with archipelagic sea lanes passage were “incorporated into the single negotiating text at the last minute”.67 It had taken Nandan every moment available to design a passage regime that, so he hoped, all the major parties could accept. ***

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At the heart of part VII of the SNT/Part II was an attempt to balance the interests of Indonesia, the Philippines, Fiji, and the Bahamas on the one hand and the maritime powers on the other. The four archipelagic states gained recognition of the archipelagic principle but were required to grant other states the right of navigation and overflight along archipelagic sea lanes as well as the right of innocent passage elsewhere in their archipelagic waters. The maritime powers received, as Nandan put it, the right of “continuous and expeditious transit through the archipelago” but not the “right of unimpeded freedom of navigation” that they had demanded.68 Also part of the balancing of interests were neighbouring states. They gained “traditional fishing rights” but not the entitlement to exploit living resources “on an equal footing” that the Thais had insisted on at Caracas. Malaysia received the “rights of direct access and communications” in the waters between the two parts of the country it had asked for at Caracas but not recognition of “all rights which that State has traditionally exercised” it asked for in the final days of the Geneva session. Because of the priority given to balancing the interests of the four archipelagic states and the maritime powers other interests were slighted or ignored entirely. India and Greece were left with nothing but a statement that the articles dealing with archipelagos would not prejudice the status of archipelagos that were part of their territories, while those states made up entirely of islands that failed to meet the “objective” criteria were left with no hope whatsoever of claiming archipelagic status. But the neglect of these states did not necessarily mean that they would oppose a convention incorporating the articles Nandan had drafted. Ultimately their decision would be based on their judgement of whether the convention as a whole served their interests. Even for the archipelagic states, whose primary goal was to secure recognition of the archipelagic principle, the decision of whether or not to support the convention to emerge from UNCLOS III would depend at least in part on their judgement of the bigger package of which the archipelagic articles were a part.

THE BIGGER PACKAGE At the same time as Nandan was hurrying to complete part VII of the SNT he was also working on all the other parts of the text that he was preparing on behalf of Galindo Pohl. Nandan was able to base his draft of these other parts on texts prepared by various informal consultative groups established by the Second Committee, the Evensen Group, and, as we have seen, the private group on straits that he co-chaired. As in the case of the archipelago articles, however, Nandan had to make the final decision about what to include in the Second Committee’s SNT. His aim in preparing the Second Committee’s SNT was a package that would—as far as that was possible—balance the interests of all states. The following were the main components of that bigger package:

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1. Coastal states were permitted to extend their territorial seas out to a maximum of 12 miles from their baselines. During a formal meeting of the Second Committee on 2 May several Latin American states reaffirmed their right to have territorial seas as wide as 200 miles; they received strong support from the Albanian, Chinese, and North Korean delegations.69 Nandan took no notice of their statements as he prepared this part of the SNT. The provisions dealing with the territorial sea also included the time-honoured right of innocent passage but provided a more precise definition of when passage was “prejudicial to the peace, good order or security of the coastal State”. This definition was largely based on the draft articles on the territorial sea that Fiji had first submitted during the final session of the Seabed Committee (and resubmitted at the Caracas session). A further important feature of the innocent passage provisions is that they followed the 1958 convention in making no mention of any right to require prior notification or authorization. The maritime powers interpreted the convention as prohibiting any such requirement, but many newly independent states, taking the view that the convention contained no explicit prohibition, had legislation requiring prior notification or authorization of warships. This issue was a matter of vital importance to the question of archipelagic states, since according to article 124 of part VII passage through archipelagic waters (outside sea lanes) would be subject to the same innocent passage regime that applied to the territorial sea. 2. All ships and aircraft would enjoy the right of transit passage through straits used for international navigation. Inclusion of the words “freedom of navigation” and “normal modes of continuous and expeditious transit” meant that submarines would be able to transit while submerged. 3. States made up entirely of islands would, under the criteria set out in part VII, be able to claim archipelagic status. Their sovereignty over their “archipelagic waters” would be subject only to the articles dealing with innocent passage and archipelagic sea lanes passage. 4. There would be an exclusive economic zone (EEZ) extending out to 200 miles from the same baselines used to measure the territorial sea. The coastal state would, as the term implied, have exclusive rights to the resources within its zone. The coastal state would have to allow operators from other states to fish in its EEZ if it did not make full use of its fishery resources but the coastal state would determine whether or not those resources were in fact fully utilized. As Nandan put it, the text provided for a “strong exclusive economic zone”, as compared to the one the US, USSR, Japan, UK, West Germany, Poland, and some other countries had wanted in which the tuna fishery of these zones would be managed by an international authority.70 Except for a provision that gave them “the right to participate in the exploitation of the living resources of the exclusive economic zones of adjoining coastal States

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on an equitable basis” the text ignored the demands of landlocked states. Nandan saw this “strong exclusive economic zone” as “a counterbalance to the accommodation of the interest of the maritime powers in passage regimes through straits and archipelagic sealanes”. The maritime powers of course had the same interest in passage through EEZs. Under the provisions of this part of the SNT foreign ships and aircraft would enjoy the same freedom of navigation and overflight as they enjoyed on the high seas. In his report to his government Nandan emphasized that freedom of passage through EEZs was extremely important to Fiji too, since it would be completely surrounded by the EEZs of other countries.71 5. The SNT defined the continental shelf as extending out to either the outer edge of the continental margin or out to 200 miles in cases where the continental margin did not extend out to that distance. The great beneficiaries of this provision would be Australia, Argentina, New Zealand, Canada, India, the UK, the US, and the USSR. Australia had made the retention of its rights out to the outer edge of the continental margin its most important priority at the conference. The text required states whose continental shelves extended beyond 200 miles to contribute a share of any revenue earned from the exploitation of that area to the authority established in the SNT/Part I to manage the exploitation of the seabed beyond national jurisdiction but left the level of that contribution blank. 6. Islands, according to article 132, would have territorial seas, exclusive economic zones, and continental shelfs just like any other land territory. According to Nandan, Fiji (namely, he and Donald McLoughlin) pushed hard for a provision that would allow states to apply the full range of zones to their islands. This was to ensure that Fiji’s neighbours that did not qualify as archipelagic states would benefit from the SNT. Among these was Tonga, which would also not gain recognition of its claim for a historic territorial sea, since, disregarding the appeals from the Philippines as well as Tonga, Nandan did not include any reference to “historic waters” in the SNT. Unless the delegation had been concerned about the regime of islands, Nandan noted, Fiji would have been accused of having an “I’m all-right Jack” attitude. As he also noted, Fiji would benefit from this regime too, since the isolated island of Rotuma would be able to have an EEZ.72 Fiji would also benefit from a provision in article 132 that “rocks which cannot sustain human habitation or economic life of their own” could have territorial seas but not an EEZ or a continental shelf. This provision would prevent Tonga from making an EEZ or continental shelf claim around the Minerva Reefs, which lie south southeast of Fiji’s biggest island, Viti Levu. Such a claim would have reduced the area that Fiji could claim as its own EEZ.73 7. Based heavily on the Convention on the High Seas, part V of the SNT reaffirmed the freedom of the high seas.

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Nandan had undertaken the task of preparing the Second Committee’s SNT partly because he wanted to contribute to the success of the conference but also because, like any other delegation leader, he wanted to further his country’s interests. For him the two purposes were one: unless the conference succeeded Fiji would not gain international recognition of the archipelagic principle. As he saw it, the only way to gain that recognition was to find a way of circumventing the Indonesians and Filipinos. The SNT did precisely that. “Through the medium of the Single Negotiating Text,” he reported, “we have extricated ourselves from being hostages to the ploys of Indonesia and the Philippines. As a result the initiative has been taken away from them,” leaving Nandan free to craft a text that he believed went a long way towards satisfying the maritime powers while also gaining the support of the great majority of developing countries. “Developing countries are not prepared to sacrifice the acceptance of their economic zone by the maritime powers for the sake of conservative passage and overflight regimes through straits and archipelagos of a handful of states.”74 That was Nandan’s strategy in a nutshell. *** The Geneva session closed with a brief plenary meeting on 9 May. Amerasinghe reported that the General Committee recommended that the fourth session be held March-May 1976, at which time the conference would decide whether a further session would be necessary. He reminded the delegates that the texts drafted by the three chairmen were intended “merely to provide a basis for negotiation”. Reflecting the growing fear within the G77 that some states, particularly the United States, would begin exploiting the seabed before the conclusion of a convention, he appealed to governments not to undertake any unilateral actions that might jeopardize the successful outcome of the conference. He also read a statement from the LLGDS appealing to “all States not to take any unilateral or other measures which would extend national jurisdiction beyond 12 nautical miles” before the conference had completed its work. With that he declared the third session closed.75 Only then, when there was no more chance to speak, were the delegates able to pick up their copies of the SNT from their document boxes. “This was done,” Nandan explained, “to avoid unstudied comments on the texts which, at least in the case of the Second Committee, contains compromise proposals.”76 Like all the other delegates the Indonesians would have to take the SNT away, study it, and begin planning for the next session.

CHAPTER 14

New York, spring 1976 1976 spring York, New

Writing a month after the third session, Satya Nandan declared that the SNT “irreversibly entrenches the concept of archipelagic States as a major trend at the Conference and as a development in international law”.1 At least in his public comments Mochtar was much more cautious. After a meeting with President Suharto on 19 May 1975 he simply described the SNT as a “positive result” and said that Indonesia had benefitted from detailed discussion of Indonesia’s archipelagic concept.2 Mochtar’s caution was well founded. India and other states fighting to have the archipelagic provisions applied to archipelagos belonging to continental states could still derail the campaign to gain international recognition of the archipelagic concept. The archipelagic states still needed to reach agreement with the maritime powers about the length of archipelagic baselines and the width of sea lanes. Since the Malaysian government was extremely unlikely to be satisfied with article 118(7) of the SNT, the Indonesian and Malaysian governments would still have to find some way of satisfying Malaysia’s interests in Indonesia’s archipelagic waters lying between West and East Malaysia without undermining Indonesia’s sovereignty. There were thus still several obstacles to overcome before the concept was entrenched not only as a trend in the development of international law but also as a fully accepted part of that law. The Indonesians’ objective was of course not simply to gain international recognition of the archipelagic concept. They also wanted to ensure that when, as they hoped, the concept did finally become part of international law it represented Indonesia’s conception of an archipelagic state as closely as possible. Pleased though they were by the general acceptance of the concept at the conference, they were dissatisfied with some aspects of the concept as it was presented in the SNT. They particularly disliked several of the passage provisions, which represented Nandan’s compromise rather than principles the Indonesians had accepted. Their principal goal at the fourth session therefore would be to try to have the text revised in line with their vision of an archipelagic state. Since much of the support that already existed for the archipelagic concept depended on inclusion of a liberal passage regime, the challenge would be to push for changes without undermining that support. 317

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PREPARING FOR THE FOURTH SESSION Mochtar’s first opportunity to reaffirm Indonesia’s position on the archipelagic concept came when he met David Newsom on 25 June. Mochtar told the ambassador that Suharto would raise “the question of U.S. acceptance of [the] archipelago principle” during his upcoming meeting with President Ford at Camp David. According to Mochtar, “acceptance means acceptance also of [the] Indonesian right to require some form [of] notification for passage of naval vessels, both surface and submerged, through archipelagic sea lanes”. He explained that Indonesia had to take this position “to get [the] acceptance of other major archipelagic states, particularly Philippines”, implying that if it were not for the Philippines Indonesia could be much more accommodating. He tried to assure Newsom that in practice Indonesia would not make the requirement “onerous”. “There was no desire [to] interfere with US nuclear deployment.”3 Indeed, it appears, there was no such desire, particularly since the takeover of South Vietnam and Cambodia by communist regimes in April. One of Suharto’s closest advisers commented around this time that the region would collapse to the communists without the Seventh Fleet.4 The Indonesian government had few means of its own to repel an external threat or interdict outside assistance to an insurrection. During his meeting with Ford Suharto observed that the ships Indonesia had acquired from the Soviet Union in the early 1960s were now “mothballed and useless”.5 But the Indonesians were genuinely uneasy about agreeing to provisions that would allow any ship of any state to navigate Indonesia’s waterways without notification. This was the basis for their repeated attempts to persuade the US to agree to a bilateral arrangement. Mochtar told Newsom that he was fully aware of the US position on this issue but buttressed his plea with a veiled threat. If Ford were to reject the archipelagic concept out of hand, he said, “this could have adverse effects on [the] visit”, since, according to Mochtar, Suharto cared even more about this issue than about gaining substantial military assistance. Newsom responded that the US would almost certainly be unwilling to accept notification of warships. At the same time, he added, he “doubted that President Ford would reject [the] archipelagic principle out of hand but would probably indicate our willingness to continue discussions with [the] Indonesians”. At this point Mochtar asked yet again why the US did not follow the Soviet example of first accepting the archipelagic concept and then working out the details. Newsom’s reply was that “we had more at stake than [the] Russians”. Following this meeting Newsom, who suspected that “Mochtar may have put President Suharto up to this”, suggested that if Suharto should raise this issue at Camp David Ford should “finesse” the question by saying that he hoped talks between the two governments could continue so that they could reconcile Indonesia’s needs with those the US had for “worldwide deployment”. This was exactly what Ford did when Suharto described the importance of the

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archipelagic principle to Indonesians. “I assure you,” Ford said, “we will work with your people to try to work out a mutual understanding.”6 As it happened, Mochtar was not ready for such talks. He welcomed the opportunity to float ideas with Newsom. For example, in November he outlined to the ambassador what he called a “beautiful solution” to the notification problem that he said “could satisfy maritime nations and cause no one to lose face”. But Mochtar was not prepared to pick up discussions with the Americans where they had left off at the end of 1974. When Newsom suggested that Mochtar might meet with US representatives during a meeting of the Evensen Group in New York in December he replied that he would be willing to meet them but only “privately and without [the] knowledge of others”. His schedule would not allow him to pay a visit to Washington.7 Of course, Mochtar was not the only Indonesian involved in his government’s archipelagic campaign. But he was by this time firmly in control of that campaign. “Discussions solely with Sudarmono,” Newsom commented in September, were “unlikely to lead to meaningful agreement.”8 Sudarmono was still working tirelessly as head of Pankorwilnas but he no longer took the initiative as he had in 1974. If Mochtar did not want discussions with the Americans there would be none. Mochtar continued to talk with Newsom from time to time, and there were other conversations such as when Hasjim Djalal spoke with the US ambassador to the Philippines in Manila, but no consultations like those that had occurred in 1974 took place at any time between the Geneva session and the start of the fourth session ten months later. During this period when they were avoiding consultations with the US the Indonesians were devoting most of their diplomatic energies towards sorting out problems with Indonesia’s neighbouring states. Indeed, Mochtar announced after a meeting with Suharto, apparently on 31 October, that these states would be the focus of the government’s preparations for the fourth session.9 At the time of this announcement the government’s most immediate concern was to find a solution to Malaysia’s demands regarding Indonesian waters between West and East Malaysia, since Suharto was about to meet Razak at Prapat in Sumatra. At their meeting in mid November Razak reaffirmed Malaysia’s support for Indonesia’s archipelagic concept on the understanding that it “would not diminish guarantees for smooth passage” between peninsular Malaysia and Sarawak and Sabah.10 Even though Razak apparently did not mention any other rights that Malaysia might enjoy in these waters, Indonesian and Malaysian negotiators failed to agree on a draft article that would satisfy both governments. “To overcome the hesitation that still appeared to exist on the part of certain Malaysian officials concerning the good intentions of Indonesia,” Djalal later wrote, “Indonesia in fact expressed its willingness to make a bilateral agreement that would guarantee the territorial unity and integrity of Malaysia, on the understanding that Malaysia would support Indonesia’s archipelagic concept.”11 The Malaysians welcomed this offer but early in 1976 demanded that such a treaty give Malaysia, among other things, the right

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to conduct military exercises and manoeuvres in Indonesia’s archipelagic waters between West and East Malaysia, the freedom to conduct these activities with the armed forces of other countries, the authority to control pollution in these waters, and the right of hot pursuit. As the Indonesians saw it, they could not accept such provisions without rendering the archipelagic concept meaningless. Djalal remarked that it was as if the Malaysians regarded the area between the Malay Peninsula and Borneo as “common waters”, just as if they would have if their proposal for a “Malay Archipelago” had come into being.12 As the fourth session approached the Indonesians were further away than ever from resolving their differences with Malaysia. When he spoke to the press after his meeting with Suharto Mochtar said that “basic agreement” had been reached with two of Indonesia’s other neighbours, namely, Singapore and the Philippines, “although a few small problems, such as fishery rights, remain to be settled”. In fact, there were big problems with both states. Immediately after Mochtar’s statement the deputy chief of Singapore’s embassy in Jakarta told an American diplomat that “there is as yet no basic agreement between Indonesia and Singapore, although [the] GOI had offered various types of ‘bait’”.13 Only during the fourth session would it become clear that Singapore was aiming to gain something that represented a far greater challenge to Indonesia than fishing rights. In the case of the Philippines, which was a fellow archipelagic state as well as a neighbour, the main difficulty was to arrive at a common position on the passage of foreign ships and airplanes. Particularly difficult was the question of prior notification. At this point the Indonesians were still working out their own position on this question. When he talked with Newsom in June Mochtar had emphasized that Indonesia would insist on prior notification of the passage of naval vessels even when they passed along sea lanes. When they met in November, however, he said that Indonesia would propose, apparently first to the Philippines and then to other states, that the convention contain a provision stating that “notification of passage of warships (through archipelagic sea lanes) is not required, but is recommended”.14 This was the “beautiful solution”. In fact, it appears, it was anything but beautiful, for as Mochtar admitted the Filipinos were unlikely to accept it (and, as he apparently did not acknowledge, the maritime powers were unlikely to embrace it either). Whether or not Indonesian officials presented this solution to their Philippine counterparts when they travelled to Manila late in 1975, the Filipinos refused to budge on the position they had been taking on the passage of ships or to countenance any reference to overflight. For the past few years the Indonesians had hoped to reach a common position with the Filipinos that would also win widespread support at the conference but as the fourth session approached they were on the verge of abandoning their efforts. In late January Suffri Yusuf told the political councillor in the US Embassy that because the Philippines government “refuses to agree to sealane and overflight

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regimes” Indonesia might have to go it alone.15 A month later Mochtar informed Newsom that because the Philippines was still “intransigent” the other archipelagic states might have to decide to go ahead without it.16 Mochtar presumably did not say this lightly, since up to this point he had used the need for the archipelagic states to maintain a common stand as a justification for not being more accommodating to the maritime powers. There was no rupture with the Philippines. Indeed the Indonesians were still much closer to the Filipinos than to the Fijians when it came to passage. They could still support each other on particular points. But the expectation that they would agree on a complete archipelagic package was becoming increasingly untenable. Fundamental to the Indonesians’ policy of focusing on neighbouring states was their principle that good fences make good neighbours. In the midst of all the negotiations that were taking place regarding a convention the government continued to negotiate maritime boundary agreements with neighbouring states. In December 1975 the Indonesian and Thai governments signed a treaty that extended the seabed boundary they had already established in the Andaman Sea in 1971. This extension was drawn in a way that clearly favoured Thailand. “It seems likely,” Prescott explains, “that Thailand successfully argued that an equitable boundary would lie south of a strict line of equidistance so that Thailand would secure more of the spur that projects southwards from its continental margin than would be gained by a strict line of equidistance.”17 Apparently the Indonesians had gone into the negotiations, which were finalized in August, ready to concede even more to Thailand, for in a letter to Suharto recommending that the government sign the agreement the mines minister mentioned that the Indonesians had gained more than the minimum position required by the government.18 As had happened in its maritime boundary negotiations with Malaysia, Australia, and Singapore the Indonesian government was prepared to be accommodating in the hope of gaining support for its archipelagic campaign. Indonesian officials were fully aware that the gathering movement on the part of many participants at UNCLOS III to declare EEZs was about to add a new dimension to the problem of boundary negotiations.19 By this time officials took it for granted that Indonesia would make such a declaration when they judged that the archipelagic principle was firmly entrenched in the text being developed at the conference. But they had not decided what method should be used to delimit the boundaries between Indonesia’s EEZ and any economic or fishery zones its neighbours might declare. There were two possible methods. The first was simply to follow the existing seabed boundaries wherever these were already in place, as they were in most of the areas where Indonesia would need to negotiate EEZ boundaries with its neighbours. The second method was to follow the median line. In many areas the two methods would produce the same result, as in the Arafura Sea, where the median line had been used to delimit the seabed boundary with Australia. In other areas, however, they would produce very different results,

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as in the Timor Sea, where the seabed boundary was much closer to Indonesia’s islands than to the Australian continent (see figure 8.2). That would mean, for example, that Indonesia’s EEZ would overlap a large area of the seabed under Australian jurisdiction. A great deal therefore depended on which of these methods the government decided to adopt in future negotiations. Since the economic zone was still under discussion at UNCLOS III, there was no international law determining which of these methods states should use but developments at the conference indicated that Indonesia would be in a strong position to insist on using the second method if it chose to do so. Although the second method was greatly to Indonesia’s advantage, however, Mochtar told Australian officials on at least two occasions that the existing seabed boundaries should also serve as the boundaries between Indonesia’s EEZ and Australia’s fishing zone once the two states made their declarations. Whether he had done this in the hope of consolidating Australia’s support for Indonesia at the conference or avoiding the problems that might arise from overlapping jurisdictions is not clear.20 In any case, a number of Mochtar’s colleagues could see no advantage to Indonesia if the boundary between the two countries’ zones were to follow the existing seabed boundaries. During a conversation with G.A. Brennan, a legal adviser in the Attorney-General’s Department in Canberra, in February 1976 Abdullah Kamil even raised the possibility that Indonesia might seek to renegotiate its seabed boundaries with Australia. When Brennan pointed out that a provision in the SNT upholding existing continental shelf boundary agreements appeared certain to become part of a convention Abdullah responded that in that case Indonesia’s EEZ should overlap part of Australia’s continental shelf.21 Australian officials were alarmed by the suggestion that Indonesia might try to reopen its seabed agreements with Australia because of the implications that might have for oil and gas concessions the government had granted in the Timor Sea. For this reason they were extremely wary of committing Australia to adopting Mochtar’s view even though it would give Australia a bigger fishing zone. Their fear was that “the vulnerability of the fisheries boundary to attack on the grounds that it grossly favoured Australia might” over time “erode the status of the seabed boundary”.22 Nothing should be allowed to put Australian jurisdiction over oil and gas deposits at risk. On the eve of the fourth session there was, at least as far as Australian sources were aware, no resolution of the question within the Indonesian government. There was no urgency to do so, however, since it was taking great care not to make its interest in declaring an economic zone widely known. As for the Australians, their hope was that their foreign minister, Andrew Peacock, would gain a better understanding of what was going on when he called on Mochtar in Jakarta in April. At the same time as they were dealing with questions related to neighbouring states the Indonesians had worked out their approach to the fourth session. When Newsom called on Mochtar on 26 February, the minister said that

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Indonesia would place the highest priority on reaching an agreement on straits passage. According to Newsom’s notes, Mochtar explained that “Indonesia would be prepared to accept agreed straits regime as a basis for regime of archipelagic passage but does not necessarily link [the] questions of straits and archipelagic passage”. On the surface this appears highly contradictory—the straits regime might serve as the basis for archipelagic passage regime but the two were not necessarily linked—but this made perfect sense to the Indonesians. The crucial point, as Mochtar conceded when Newsom tried to summarize what the minister had said, was that the Mochtar “did not wish to acknowledge [the] linkage between straits and archipelagic passage”.23 It might so happen that there would be a lot of similarities between the two, but they would not be called the same thing. Moreover, there would almost certainly be some differences between them that reflected the fundamental difference in the character of the waters in question. At the very least, the government had decided on the eve of the fourth session, “the regime of passage through sealanes within archipelagic waters cannot be more liberal or less strict than the regime of passage through straits used for international navigation, because of the national character of archipelagic waters”.24 At this point the government had a general idea of what this might mean in practice. It had decided, for example, that foreign warships and foreign vessels with special characteristics would not have to provide prior notification if they stayed within designated sea lanes.25 But it appears that the Indonesian delegation, to be headed by Sudarmono for the first week until Mochtar arrived, was given considerable freedom to finalize the details of the Indonesian position as the session developed. As he normally did on the eve of a new session, Newsom offered the State Department his thoughts on the upcoming negotiations from his perspective as the American ambassador to Indonesia. On this occasion he was very worried that the US delegation, which had undergone a shake-up as a result of John Stevenson’s retirement and the subsequent resignation of John Norton Moore, had come to see the Indonesians as “antagonists”. He was critical of what he regarded as the rigid stand being taken by the US. Whereas, he wrote, the Soviets had agreed to accept the archipelagic concept in principle and work out the details later, the Americans were, in effect, saying “When you agree with our definition of [an] archipelago we will then consider whether we can support it.” Newsom feared that if the US delegation took a tough stand in New York it could damage US-Indonesian relations generally. His own impression was that the gap between the US and Indonesia “is not as great as it may seem” and he appealed to the delegation to be more “forthcoming” in New York. His hope was that taking such an attitude might break the impasse. “Movement on our part might also have [an] [e]ffect on [the] Philippines or at least encourage [the] Indonesians to proceed without waiting for Philippine agreement.”26 The US ambassador in the Philippines wrote to Washington in support of Newsom’s plea.27

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THE EARLY WEEKS During the first plenary meeting on 15 March President Amerasinghe declared that the fourth session “would be the most crucial one so far, because it was the first time that there had been a sound basis for negotiations”. Following consultations with the three committee chairmen and other conference officials and a meeting of the General Committee earlier in the day he announced that that there should be no general discussion of the SNT and that the three committees should immediately begin informal negotiations of the articles. It was left to each committee to decide whether it would discuss the articles one by one or in groups of articles or concentrate on key issues. Following the procedure that the conference had adopted out of desperation during the Geneva session, each chairman would, if he found that there was widespread support for particular amendments, be free to revise the negotiating text “while keeping its informal nature. That would be entirely within the discretion of the Chairman concerned, who would act in accordance with the wishes of his Committee”.28 Another announcement was that Andrés Aguilar had resumed the chairmanship of the Second Committee. The importance of this change would soon become apparent. Under Aguilar’s leadership the Second Committee made two crucial decisions about how it would conduct its work. First, it decided to review the SNT article by article. This review would be conducted by the full committee meeting in informal session. This procedure gave those delegations, particularly those from the LLGDS group, that felt they had been marginalized during the Geneva session the opportunity to raise objections to particular articles and propose amendments. It also “served to clarify the extent of support for or opposition to every part of the text”.29 Second, the committee decided to conduct the review under the rule of silence. It would be assumed that the delegations were in basic agreement with an article unless they expressly objected to it. At the same time it would be assumed that unless a delegation expressed its support for an amendment to a particular article it had no desire to change the article. As Koh and Jayakumar explain, the rule of silence “created a presumption in favor of the text and was advantageous for those who were satisfied with a given provision. It was disadvantageous for those who wanted certain provisions changed. Those States had to muster as many like-minded delegations as they could and orchestrate a chorus of criticism of the provision in the hope that the Chairman would alter the text.”30 It was not strictly a matter of numbers. If a particular issue only concerned a small number of states then Aguilar would take particular note of the views of those states. Some of the archipelagic articles such as those concerning the rights of neighbouring states fell into this category. Otherwise, however, numbers really did matter. Thus, if the Indonesian delegation wanted to change any of the articles dealing with matters such as navigation and overflight that interested a substantial number of states it would need to rally as much support as possible.

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A consequence of the decision to review the SNT article by article was that the committee’s meetings consumed most of the delegates’ time. During the Geneva session much of the most important work related to the Second Committee was conducted in informal consultations outside the formal structure of the conference, most notably by the Fiji-UK and the Evensen groups. Such consultations took place during the New York session as well but they were subsidiary to the grind of reviewing the SNT. This was particularly the case because Aguilar was so firmly in charge of the committee’s work. In Geneva Galindo Pohl had handed over the work of preparing the SNT to Nandan, who consulted with other delegates in private. In New York Aguilar would have help from the committee’s vice chairmen as well as Nandan and meet with other delegates in private but the revised text would ultimately reflect his judgement of the weight of support for or opposition to particular articles within the committee. For the Indonesian delegation the two sets of articles that concerned it the most were those dealing with straits used for international navigation (part II) and of course those dealing with archipelagos (part VII). Although the Indonesians would not acknowledge any linkage between transit passage and archipelagic sea lanes passage, they almost certainly reasoned that strong support for giving straits states greater control over transit passage would pave the way for giving archipelagic states greater control over archipelagic sea lanes passage. Any effort spent on trying to amend part II would, so it seemed, not only serve Indonesia’s interests in the Malacca Strait but also set the stage for amending the passage regime in part VII. The Second Committee conducted its review of part II between 30 March and 1 April.31 Several states attacked the whole concept of a regime giving foreign ships and aircraft unimpeded passage through and over straits. They proposed, as many straits states had at previous sessions, that straits used for international navigation be subject to the innocent passage regime just like any other part of a state’s territorial sea. Malaysia went so far as to propose that all the articles dealing with straits be deleted. Many of the same states advocating the innocent passage regime also called for amendments to the existing text that would have had the effect of subjecting straits to that regime. Thus, they proposed that submarines be required to transit on the surface and that there be no mention of a right of overflight. Some states implicitly accepted the need for a special regime for straits but wanted to give straits states greater control over transiting ships and aircraft. During this review of the straits articles Hasjim Djalal, representing Indonesia in the Second Committee as he had at previous sessions, did not expressly support the calls to overturn the straits regime in the SNT. Instead, according to the Americans’ notes, he said that Indonesia was “not yet persuaded” on the transit regime and then “raised unhelpful questions regarding overflight and [the] meaning of [the] text”, as for example the meaning of “normal mode” as applied to submarines and aircraft carriers. The notes suggest that the Indonesians were trying to show their support for the “hardline” straits states without actually committing themselves

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to specific proposals to fundamentally change the text. But they wanted to make some changes. Noting that the provisions in the SNT regarding overflight “would prevent coastal state control over aircraft overflying straits”, Indonesia supported a Yemeni proposal to delete any reference to the right of overflight, at least, Djalal added, “until it receives sufficient ‘guarantees’”. Indonesia also proposed a few amendments of its own. It proposed deleting “the right of” from article 38(1) (“all ships and aircraft enjoy the right of transit passage”) and “the freedom of” from article 38(2) (“Transit passage is the exercise in accordance with the provisions of this part of the freedom of navigation and overflight…”), thereby diminishing the standing of transit passage and eliminating its association with the high seas regime. Another proposal was to change the article dealing with the designation of sea lanes and traffic separation schemes (40(4)) to read “a strait state shall consult the competent international organization”. This of course would have removed any need whatsoever for international approval. Under the rule of silence those delegations that were largely satisfied with the existing text had only to sit and say nothing. That is precisely what most of them did. As it happened, around fifteen or so states, among which were China, Albania, Yemen, Somalia, and Malaysia, wanted fundamental change to part II. According to the Americans’ notes, many Arab states remained silent or spoke only to support technical amendments. Only China and Oman supported the Malaysian proposal to eliminate part II altogether. The straits articles, so the review suggested, would remain pretty much as they were in the SNT. The Indonesians gained little support for their proposals. Only China and Iran supported their call to eliminate “right of” and “freedom of” from article 38, while only Bangladesh supported their rewording of article 40(4). Whatever the Indonesians may have thought, most delegations saw a close linkage between the transit passage and archipelagic sea lanes passage regimes. Precisely for this reason the strong stand taken by the straits states group during the review of part II had, according to Nandan, made “more and more States who are users of such straits…apprehensive as to the effect that the implementation of the Straits States proposals would have on their rights of access through straits and archipelagic waters”.32 The review of the straits articles had now made any attempt to give archipelagic states greater control over archipelagic sea lanes passage even more difficult than it already was. By the time of the review of part II important developments were underway within the archipelagic states group. The group’s membership still consisted of Fiji, Indonesia, the Philippines, and Mauritius. Although they told Nandan that they were “still interested in maintaining Archipelagic state status”, the Mauritians were no longer attending the meetings.33 A state that the three active members might have invited to join the group was the Bahamas but according to US notes the Indonesians would not allow it to join,34 presumably because of its readiness to accept the US position on passage (“Bahamas don’t count, our situation is

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different,” Mochtar had told Newsom in June 197535). Excluding the Bahamas of course did not mean that there would be agreement within the group, since the Fijians were convinced from “our own corridor discussions with many other countries” that the conference would support the archipelagic concept only if it was accompanied by a liberal passage regime.36 The group had apparently made no progress when, in the second week of April, the Bahamas circulated a paper appealing to the conference to support the archipelagic articles in the SNT, noting that those articles contained guarantees for international navigation and overflight, and reaffirming the Bahamas’ support for those guarantees. Only at this point did the Indonesians invite the Bahamians to join the group. The Bahamians’ initial response was that they would think about it—they felt that they would have greater freedom if they stayed out and of course were satisfied with the text as it stood—but they soon agreed to take part in the meetings.37 At some point the Papua New Guineans, whose position was also close to Fiji’s, were also invited to join the group. The discussions within this group of five quickly reached an impasse. According to Nandan, the Fijians told the Indonesians and Filipinos that “we were unable to join them in their hardline positions which we feared could jeopardise the strong support that we had gained for the Archipelagic States concept”. They were supported by the Bahamians and Papua New Guineans.38 The members of the archipelagic states group had come to a parting of ways. They could no longer paper over their differences. There was no longer even the appearance of unity as there had been during the Geneva session. If the Indonesians and Filipinos wanted to make major changes to the archipelagic articles they would have to do so without the support of other members of the group. In fact, on some aspects of the archipelagic package they would have to do so without each other’s support, since even the two of them could not agree on everything. The archipelagic states group was now a group in name only. Any amendments that the Indonesians might want to make to part VII would therefore have to be submitted in Indonesia’s name alone rather than jointly with any other archipelagic states. As these events unfolded the Indonesians continued to maintain their distance from the US. Oxman and Morris talked with Mochtar and Suffri Yusuf sometime during the review of the straits articles but Mochtar showed no desire to discuss specific aspects of part VII. Instead he raised yet again the possibility that in the absence of a convention Indonesia and the US might enter into a bilateral agreement. Perhaps rather flippantly, he suggested that there might be no need for a convention, since the fact that Congress had recently passed legislation establishing a 200-mile fisheries zone demonstrated the acceptability of unilateral claims. The Americans countered with the suggestion that because of the growing acceptance of a 200-mile economic zone Indonesia might find it harder to justify its archipelagic claim. As the conversation moved on, Mochtar launched into a discussion of the “inability of people from Java to say no”, which the Americans took as implying that they had been misinterpreting statements made by Sudarmono, a Javanese.39

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At the end of this “long and inconclusive” meeting they were left with nothing but the impression that he was unwilling “to deal with the US (except perhaps tacitly) at least at this time”.40 In the lead-up to the review of part VII US delegates met with Sudarmono on a few occasions but these discussions too were (so the Americans saw them) “inconclusive”.41 Unless the Americans were prepared to make a major concession (in a major speech on the law of the sea on 8 April Kissinger did not even mention archipelagos, a fact that Newsom was certain Mochtar would note42) there was, from the Indonesian point of view, little point in engaging in serious negotiations with the US.

INTERLUDE IN JAKARTA Shortly after his “inconclusive” conversation with the Americans Mochtar flew back to Jakarta. Immediately after his return he briefed Suharto on developments at the conference, told reporters that the major maritime powers would support the archipelagic principle provided that their warships had freedom of navigation, and (two days after another oil spill in the Singapore Strait) announced that Indonesia would be seeking $13.5 million from Japan as compensation for the Showa Maru incident.43 Then, a few days later, he held a meeting with the visiting Australian foreign minister, Andrew Peacock.44 Looming over this meeting was the Indonesian invasion of East Timor in December 1975. The Australian government officially condemned the invasion but did not want the issue to undermine its relationship with Indonesia or damage the prospects for cooperation in other realms such as the law of the sea. Peacock was therefore very accommodating when the meeting turned to that subject. He assured Mochtar of Australia’s support for its archipelagic campaign as long as the convention contained adequate passage provisions. Mochtar, for his part, assuaged Peacock’s concerns that Indonesia might want to renegotiate its seabed boundaries with Australia once the convention came into force. He also, so it seemed, cleared up the confusion over the position Indonesia would take in boundary negotiations once the two countries declared economic or fishery zones. While there had been debate within the government over this issue, he said, Indonesia would definitely take the view that the boundary between the two countries’ zones should follow the existing seabed boundaries. But, he added, it “might be politic…to delay matters until the general Timor situation had quietened down”. Peacock then referred to the gap in the seabed boundary in the Timor Sea that Indonesia and Australia had negotiated in 1972. Australia had been unable to negotiate a seabed boundary with Portugal45 but perhaps could now, so Peacock suggested, negotiate such a boundary, and one for fisheries as well, with the provisional government that Indonesia had established in East Timor or, “if Timor had decided to integrate with Indonesia”, with the Indonesian government. At this point Peacock tried to elicit Mochtar’s support for

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the issue that mattered the most to Australia at the conference, namely, the concept of an extended continental shelf. As it happened, the Indonesians supported this concept, since they believed that it would give them jurisdiction over the seabed in certain areas beyond the EEZ they expected to declare, but Mochtar, ever conscious of Indonesia’s primary objective at the conference, replied that Indonesia “could not be too blunt” about its support “in view of the importance of African support for its own archipelagic concept”. After Mochtar responded to a question from Peacock about Indonesia’s political prisoners—there were no “Kangaroo courts”, he said—the meeting came to an end. A few days later Mochtar was on a flight back to New York.

THE ARCHIPELAGOS DEBATE In Mochtar’s absence the Indonesian delegation had been busy preparing a large number of amendments to part VII of the SNT. Apparently it went about this work in close collaboration with the Filipinos, since several of their amendments were identical to ones submitted by the Philippines, but because some of them were different the two delegations submitted their amendments separately. On the eve of the review of part VII the US delegation learned that Indonesia was planning amendments that were “fairly extreme” though less so than those planned by the Philippines.46 The review took place over four days in late April.47 Part VII, as we have seen, was titled “Archipelagos” and was divided into two sections, namely, “Section 1. Archipelagic States” (article 117 to 130) and “Section 2. Oceanic archipelagos belonging to continental States” (article 131). The first speaker was the US representative in the Second Committee, Thomas Clingan. At the request of the Bahamians, Fijians, and Papua New Guineans, who presumably viewed the impasse between themselves and the maritime states on the one hand and the Philippines and Indonesia on the other with growing alarm, Clingan made what the Americans described as a “nuanced” statement on the whole question of archipelagos.48 Part VII, he said, had a number of “troubling” aspects. These were the questions of whether archipelagic states would be prepared to accept a “careful definition” limiting the area to which the archipelagic concept would apply, whether there would be adequate guarantees for navigation and overflight, and (alluding to the position various continental states such as India were expected to take) whether “the mere presence of this [part] may invite attempts by others to expand its application”. But part VII, he added, was also “encouraging in that it provides an unique opportunity to accommodate the legitimate concerns of certain archipelagic states, concerns which enjoy our sympathy and understanding in a manner consistent with the interests and needs of others”. This highly qualified statement was hardly the in-principle declaration of support the Indonesians had wanted

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but it was the closest the Americans had come to a public endorsement of the archipelagic principle. Nandan was apparently referring to Clingan’s words when he reported that the US had expressed its support for the archipelagic concept, “subject to liberal rights of passage and overflight being preserved in the text”, “for the first time in public”.49 Since Clingan was opening the debate on part VII his more immediate task was of course to propose an amendment to the words that began that part, namely, “Archipelagos” and “Section 1. Archipelagic States”. He proposed a “technical amendment” to delete the section heading and change the title of part VII to “Archipelagic States”.50 This amendment was in fact anything but merely “technical”, for if part VII was to be titled “Archipelagic States” then presumably there would be no mention whatsoever of “oceanic archipelagos belonging to continental States”. The USSR representative went a step further, proposing the deletion of both of the subheadings as well as giving part VII the title “Archipelagic States”. Part VII, so he said, should not deal with “any insular parts of continental states”. There was an immediate uproar. During the review of the straits articles delegations that opposed a particular amendment usually indicated their disapproval by remaining silent but increasingly they expressed their opposition verbally, sometimes vehemently. In the case of these amendments proposed by the US and USSR, the Indian representative declared that they “were so fundamental in nature as to shake the basis of the SNT and thus make the convention non-negotiable”. Altogether twelve states including Spain, Ecuador, Portugal, and Greece as well as India came out in opposition to the amendments, but twenty-one others, including Turkey and Thailand as well as the superpowers, supported them. Some of the LLGDS used the opportunity to say that they would support the amendments if more were done to accommodate their interests. Similarly, New Zealand said it would accept them “only if the islands off New Zealand are protected by an adequate regime for islands”, meaning, for example, that the continental-shelf and EEZ regimes would apply to the Chatham Islands just as they would to the country’s two main islands. None of the archipelagic states spoke either for or against the amendments. When it came to the whole question of archipelagos belonging to continental states they would let others do the fighting, knowing that their best chance of gaining recognition of the archipelagic principle was to have any reference to such archipelagos expunged from the SNT without their having to take sides in public.

Definition and delimitation Article 117(2(a)) defined an archipelagic state as “a State constituted wholly by one or more archipelagos and may include other islands”. Presumably because it hoped to prevent the Bahamas from qualifying as an archipelagic state, Cuba proposed deleting “and may include other islands”. Only the Soviet Union and six other Eastern Bloc state supported Cuba. Fiji, which definitely would have failed

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to qualify as an archipelagic state if the words had been deleted, and Nicaragua opposed the amendment. Their opposition and, far more important, the silence of the great majority of delegations ensured that there would be no change. Article 117(2(b)) defined an archipelago as “a group of islands, including parts of islands, inter-connecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographic, economic and political entity, or which historically have been regarded as such”. Not a single delegation sought to amend these words. The question of definition, once so difficult, was finally settled. But the question of delimiting archipelagic states was not. Article 118(1) allowed an archipelagic state to “draw straight baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that such baselines enclose the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between one to one and nine to one”. At this point the Mauritians showed that, as they told Nandan, they were indeed still interested in achieving archipelagic status, for Mauritius proposed deleting all the words after “drying reefs of the archipelago”. That would, at least as far as article 118(1) was concerned, have allowed Mauritius to draw a single set of straight baselines around all of its islands even though there would have been about 150 times as much water as land within those baselines. Cape Verde’s proposal to delete everything after “the main islands” would have had the same effect of removing any requirement regarding the ratio between land and water. At this point in the review neither Mauritius nor Cape Verde received any support. The silence of the other delegations seemed to doom their effort to remove the ratio requirement. A proposal to change, rather than delete, the ratio came from the UK. The British were happy with the ratio as it stood but if it was going to be changed they wanted to amend it to allow the UK to qualify as an archipelagic state; specifically, they proposed, the ratio between land and water could be as great as 2:1. They received the support of the Japanese but the strong opposition of the Soviets. Since the British themselves did not press their own amendment with much conviction there was little chance the text would be changed to allow the UK, Japan, and New Zealand to claim archipelagic status. In addition to these proposals to delete or change the ratio requirement there were various other proposals to amend article 118(1). Aside from a suggested drafting change the only one to gain widespread support was a proposal to replace “straight baselines” with “archipelagic baselines”. Indonesia supported this proposal but suggested that “archipelagic straight baselines” might be more appropriate. Once an archipelagic state had identified “archipelagos” that conformed to the requirements in 118(1) it had to draw the straight baselines referred to in that article according to article 118(2). Article 118(2) stipulated that the length of those baselines “shall not exceed 80 nautical miles, except that up to ___ per cent of the total number of baselines enclosing any archipelago may exceed that length, up to

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a maximum length of 125 nautical miles”. The review of this paragraph generated a flurry of amendments. These varied greatly in the degree of change being proposed. At one extreme the USSR, US, Cuba, and Bulgaria simply proposed that the blank be filled with “one”—just 1 percent of the total number of baselines could exceed 80 miles. The Philippines wanted to change “shall not exceed 80 nautical miles” to “shall not exceed 100 nautical miles” and to fill the blank with “5”. It was supported by eight states including Indonesia, Fiji, and Ecuador, while the Bahamas said that it had “no objection” to it. It was opposed by the USSR and Bulgaria. Cape Verde followed the Philippines in proposing to change “shall not exceed 80 nautical miles” to “shall not exceed 100 nautical miles” but then went far beyond the Philippines to propose allowing up to 30 percent of the lines to be as long as 150 miles. Finally, at the other extreme from the USSR, US, Cuba, and Bulgaria, Mauritius proposed deleting the paragraph altogether; in combination with its proposal to delete any limit on the ratio between land and water in article 118(1) this would have allowed it to encircle its tiny, far-flung islands with a single system of straight baselines. No delegation spoke in support of either the Cape Verdean or the Mauritian proposal. As it happened, Mauritius and Cape Verde did have several supporters. As the committee worked its way through the remainder of article 118 they held back but as the review of the article was finishing Brazil made an appeal on behalf of Mauritius, Cape Verde, and Tonga to have the article changed so that they could qualify as “full archipelagic states”. By this they meant that each of these states would be able to enclose all of its islands within a single system of baselines rather than only certain clusters of islands. An appeal (by whom is not stated in the US notes) specifically on behalf of Cape Verde, whose islands were generally bigger and closer to one another than Tonga’s and particularly Mauritius’s, was supported by twelve states including Ecuador, Greece, Portugal, and Nigeria. None of the five archipelagic states that the maritime powers hoped to accommodate provided that they gained liberal passage rights—the Bahamas, Fiji, Indonesia, the Philippines, and PNG—spoke at this time. They were walking on a tightrope. On the one hand, they wanted more than the maritime powers seemed prepared to accept. On the other, they knew any concerted effort to reword article 118 to allow large numbers of states made up of islands, no matter how small and spread out, to claim archipelagic status could sink their campaign.51 They would have to pursue their objective with great care.

The Malaysia problem In the lead-up to the fourth session the Malaysians had made it very clear to Indonesia that they wanted much more extensive rights in Indonesia’s archipelagic waters between West and East Malaysia than those provided by article 118(7) of the SNT, even though that article was taken from the amendments Malaysia had submitted at Caracas. In an interview just before departing for New York on 13 April the head of the Malaysian delegation, Abdul Kadir Yusuf, emphasized

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just how important this issue was to Malaysia.52 “Though we fully support the Indonesia archipelagic sea concept,” he said, “we must ensure our existing rights of use between peninsular Malaysia and Sabah and Sarawak. This is of vital importance to the security of our country.” For that reason, he continued, Malaysia “must insist” that the convention include a clause ensuring Malaysia’s rights in these waters. In addition, Malaysia “might” also sign an agreement with Indonesia “guaranteeing” rights such as those concerning overflight, navigation, fishing, and laying submarine cables and pipelines. Although Kadir commented that “we are negotiating with Indonesia to get these rights in a very friendly manner”, the Indonesian and Malaysian delegations were no closer to reaching an understanding when the Second Committee began reviewing part VII. The Malaysians proposed that article 118(7) be amended as follows: If the drawing of such baselines results in enclosing an area or areas of the sea separating two or more parts of an immediately adjacent neighbouring State, all existing rights which that State has traditionally exercised and all rights stipulated under agreements already concluded and other legitimate interests shall enure and remain unaffected. The main difference between this wording and the amendment Malaysia submitted in Geneva was that it removed the listing of certain rights that would, among others, be covered by the article. This change had no effect on the substance of the amendment. Thus, the first part of the sentence retained the irritating implication that Indonesia was somehow responsible for separating East Malaysia from West Malaysia, while the second part still seemed to imply that Malaysia could do whatever it pleased in the waters in question. From the Indonesians’ point of view the proposal was therefore completely unacceptable. But they refrained from saying this. Instead, along with US and the USSR, they merely stated that they would “study” the proposal. They also were, so it seems, receptive to a suggestion from the UK that the directly interested parties, which in this case were only Indonesia and Malaysia, try to work out a solution.

Jurisdictions No delegation had any proposals to change article 119, establishing that an archipelagic state’s territorial sea, exclusive economic zone, and other jurisdictions would be measured from their straight baselines, or article 120, proclaiming the archipelagic state’s sovereignty over the waters and seabed enclosed by the baselines and the airspace over its archipelagic waters. The only substantive proposal regarding article 121, which allowed archipelagic states to delimit internal waters by drawing straight baselines across bays and river mouths under the same rules that would apply to any other state, came from the Philippines. Still clinging to

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their view that all the waters inside their straight baselines were internal waters, the Filipinos described the article as “unnecessary” and proposed that it be deleted. No one supported them.

Rights of neighbouring states Article 122, which was drafted largely with Indonesia’s ASEAN neighbours in mind, required archipelagic states to “respect existing agreements with other States and…recognize traditional fishing rights of the immediately adjacent neighbouring States in certain areas of the archipelagic waters”. When the article came up for review on 26 April no delegation, not even Japan’s, which by this time was (as Djalal put it) “forced to feel satisfied” with the requirement that archipelagic states respect existing agreements,53 proposed amendments to the existing wording. The Japanese did, however, want to add a new paragraph requiring archipelagic states to “respect existing submarine cables laid by other states and passing through the archipelago. In particular, the maintenance and replacement of such cables shall not be hampered.” Altogether six states expressed their support.54 The Indonesian delegation was prepared to support it as well provided that it was modified in a way that placed on the state wanting to maintain or replace a cable the obligation to make its location and “other relevant particulars…known to the archipelagic State concerned” and to provide the archipelagic state prior notification. Twelve states, including Australia, Thailand, Bulgaria, and all the other main archipelagic claimants, supported the Indonesian modification of Japan’s proposal. There the matter stood for the moment. Although the review of article 122 focussed entirely on proposals to add a new paragraph, this did not mean that all the delegations had been satisfied with the paragraph that was already in the article. Certainly the Singaporeans were not. They were happy with the wording as far as it went but wanted it to cover much more than fishing rights. On 22 April the Singapore government handed the US Embassy an aide-memoire expressing its fear that the application of the archipelagic concept by Indonesia and the 12-mile territorial sea by Indonesia and Malaysia would deprive the navy and air force of virtually the whole area in the South China Sea they had been using for training and exercises. For this reason, the government insisted, the SNT “must be modified…to allow retention of all existing rights including training by military aircraft and naval ships”. According to the Singaporean officials with whom the Americans discussed this matter Indonesia had said that it “might” be willing to work out a bilateral agreement allowing Singapore to conduct those sorts of activities but because Singapore could not be sure that future Indonesian governments would honour such an agreement the officials wanted Singapore’s rights to be protected in international law as well. This was a highly sensitive matter in much the same way Indonesia’s problem with Malaysia was. Indonesia could hardly be expected to accept wording in the convention that gave another state the right to conduct military exercises within its territory. At

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the very least it could never accept any explicit reference to such rights. In the hope of finding a favourable solution to this problem Singapore appealed to the US for its help in modifying the SNT.55 The Americans were eager to help, not only because of their interest in maintaining good relations with Singapore but also because they wanted to win its support for their campaign to hold a further session of the conference in 1976. Apparently behind-the-scenes discussions began almost immediately but had not progressed to the point where any delegation was prepared to offer an amendment when article 122 was reviewed on 26 April. This did not necessarily mean that the opportunity to amend it had been lost, since this was one of those articles that concerned just a handful of states, but those trying to find a solution would have to move quickly.

Passage When he finalized the articles dealing with passage in part VII of the SNT, Satya Nandan had ignored several provisions in W43 that supposedly represented the position of all four archipelagic states but in fact only represented the stand taken by Indonesia and the Philippines. Now, as the Second Committee began its review of the passage articles in part VII, the Indonesian and Philippine delegations tried to have the text revised along the lines of those provisions. The first of the passage articles was article 123(1). Subject to the provisions of the article establishing archipelagic sea lanes passage, namely article 124, it stated, “ships of all States…shall enjoy the right of innocent passage through archipelagic waters”. The Philippines proposed replacing “through archipelagic waters” with “through all routes customarily used for international navigation in archipelagic waters”. Indonesia said that it could accept this change but wanted to replace “through archipelagic waters” with “through routes customarily used for international navigation in archipelagic waters”; the implication was that foreign ships would enjoy the right of innocent passage in some but not all of the routes used for international navigation as in the Philippines version. Only two states, Greece and Nigeria, supported the Philippines proposal, while none supported Indonesia’s. There was no impetus whatsoever to deny foreign ships the right of innocent passage regime outside of commonly used shipping routes. Nor, however, was there any push to change article 123(2), which gave archipelagic states the right to suspend temporarily the right of innocent passage in certain areas “if such suspension is essential for the protection of its security”. The vast majority of delegations were happy to accept article 123 as it was. The committee then began reviewing article 124, the longest, most complex, and, for the Indonesians and Filipinos, least satisfactory article in part VII. For the Filipinos and Indonesians the most fundamental question concerning the article was whether it should deal with aircraft as well as ships. The Philippines proposed deleting all references to aircraft and overflight. Exactly as they had during the straits debate the Indonesians said that they would reserve their position on the

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question of overflight depending on whether sufficient security guarantees were incorporated into the text. Then, after discussion of a proposed drafting change from Fiji, the committee began going through the article paragraph by paragraph. Both the Philippines and Indonesia had lined up supporters for the review of article 124. China, Greece, Libya, Mauritania, Morocco, Yemen, Iran, and Oman all supported all of the Philippines’ amendments, while several of the same states, namely, Greece, Libya, Mauritania, Morocco, Yemen, and Oman, as well as one other, Egypt, did the same for Indonesia’s. The maritime powers had lined up even more supporters for their amendments. Thirteen states supported all of the US delegation’s amendments, while twelve did the same for West Germany’s. One of those supporting all of the amendments proposed by the US and West Germany was the Bahamas. According to article 124(1), “An archipelagic State may designate sea lanes and air routes suitable for the safe, continuous and expeditious passage of foreign ships and aircraft through its archipelagic waters.” The great problem with these words for the maritime powers was the word “may”: designating sea lanes and air routes was optional. Actually, an archipelagic state had a powerful incentive to designate sea lanes, since article 124(12) stipulated that until it did so foreign ships would be able to exercise the right of archipelagic sea lanes passage “through the routes normally used for international navigation”. Presumably because article 124(12) made no reference to air routes, however, the maritime powers wanted to find a way to prevent archipelagic states from finding a way to avoid designating air routes. They had good reason to worry, since the Indonesians quickly made it clear that their government did not want article 124(1) to mention even the possibility of designating air routes. Their version of article 124(1) deleted the reference to air routes. The Indonesians wanted to fundamentally change the character of article 124(1) in another way too, for they also proposed adding words allowing the archipelagic state to “confine the passage of certain types of ships through [archipelagic] waters to such sealanes”. Thus, even if article 123 remained as it was in the SNT certain types of ships would be denied the right of innocent passage outside of any sea lanes an archipelagic state might designate, since they would be required to transit along those sea lanes. When the review turned to article 124(2)—“Ships and aircraft of all States…shall have the right of archipelagic sea lanes passage in sea lanes and air routes through the archipelago”—the Filipinos proposed that it be amended as follows: “Warships, nuclear-powered vessels, and vessels of special characteristics…shall be allowed archipelagic sealanes passage only in sealanes designated by the archipelagic state in accordance with the provisions of this section.” At first glance this wording seems rather puzzling—of course archipelagic sea lanes passage would only be allowed in sea lanes—but the intention was precisely the same as that behind Indonesia’s amendment to article 124(1), namely, to allow certain types of ships archipelagic sea lanes passage (there was no reference to it as a “right”) but to deny them the

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right of innocent passage outside those lanes. Article 124(2) was thus transformed from a paragraph that gave ships and aircraft a right to archipelagic sea lanes passage into one that required certain types of ships to transit along sea lanes if they wanted to pass through an archipelagic state’s waters and made no mention of aircraft at all. The Indonesians’ version of article 124(2) gave foreign ships the right of archipelagic sea lanes passage but also gave archipelagic states the right to “require prior authorization for the passage of foreign non-commercial vessels outside the sealanes”. Because of the uncertainty associated with obtaining prior authorization this version of article 124(2) could effectively force non-commercial vessels to pass along a sea lane even if the archipelagic state had not explicitly required it to do so under the Indonesian version of article 124(1). Neither the Philippine nor the Indonesian versions of articles 124(1) and (2) explicitly gave an archipelagic state the right to require foreign ships to provide prior notification or to obtain prior authorization while navigating along a sea lane but the Philippine version of article 124(2) did emphasize that passage would be “subject to the laws and regulations promulgated by that State”. In the midst of the review of article 124(2) the US proposed amending the text to read “shall have the right, which shall not be impeded, of…” precisely to prevent a requirement such as prior notification or authorization. While article 124(2) established the right of archipelagic sea lanes passage, 124(3) defined that right as “the exercise in accordance with the provisions of the present Convention of the rights of navigation and overflight in the normal mode for the purpose of continuous and expeditious transit through an archipelago”. The battleground here was the phrase “the rights of navigation and overflight in the normal mode”. Both the US and the USSR proposed replacing “the rights” with “the freedom”, thereby identifying archipelagic sea lanes passage more closely with passage on and over the high seas. They also proposed deleting “in the normal mode”, since the insertion of “freedom” meant that this phrase was no longer needed. The Indonesians, with very different intentions, proposed deleting the reference to overflight and “in the normal mode”. Thus aircraft would not have the right of overflight. Ships would have the right of navigation but removing “in the normal mode” meant that submarines might not necessarily be able to pass along archipelagic sea lanes while submerged. If this were to happen, archipelagic sea lanes passage would cease to have any real value for the maritime powers. Article 124(5) dealt with one of the most intractable issues in the archipelagic package, the width of archipelagic sea lanes. Even when Sudarmono and John Norton Moore seemed to agree on most of the elements of an archipelagic package in December 1974 they had been unable to agree on the width of these lanes. Because the maritime powers and archipelagic states had come no closer to a consensus on this matter during the Geneva session Nandan had left the actual figures blank when he drafted article 124(5): “The width of a sea lane shall not be less than ___ nautical miles or ___ per cent of the distance between the nearest points on islands bordering the sea lane.” Now, as the committee reviewed these

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words, the two camps made another attempt to have their figures inserted into the text, and to make a few other changes as well. The US proposed that “The width of a sealane and air route shall not be less than 80 nautical miles or 80 percent, whichever is less, between the nearest points on [the] main islands bordering the sealanes”. The addition of “main” was apparently an attempt to prevent an archipelagic state from using the presence of a tiny outcrop as a way to reduce the width of a sea lane. A proposal from the USSR was identical except to use “air corridor” rather than “air route”. Countering these two proposals were identical proposals from Indonesia and the Philippines. They proposed that the width “shall not exceed 20 nautical miles or 30 percent of the distance between the nearest points on islands bordering the sealanes, whichever is the narrower, unless the archipelagic State designates wider sealanes”.56 Taken literally, this meant that the archipelagic state could make them as wide or as narrow as it wanted to. There, it appears, the matter rested. Aguilar would have to decide how to handle it. Several of the other paragraphs in article 124 concerned the designation of sea lanes and prescription of traffic separation schemes. Both Indonesia and the Philippines wanted to have the text amended to give them as much discretion as possible in carrying out these tasks. Article 124(4) of the SNT declared that the sea lanes and air routes established in the earlier paragraphs “shall traverse the archipelago and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through the archipelago…”. As well as deleting the reference to overflight Indonesia wanted to reword the paragraph so that the archipelagic state would only have to “take into account the appropriate passage routes most customarily used for international navigation”. The Philippines proposed deleting the paragraph altogether or truncating it so much that it merely stated that sea lanes “shall traverse the archipelago and the adjacent territorial sea”. The most important of the paragraphs dealing with the designation of sea lanes and prescription of traffic separation schemes was 124(9). Nandan’s carefully balanced paragraph required an archipelagic state to “refer proposals to the competent international organization with a view to their adoption” and added that that “organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate or prescribe them”. Reaffirming the position the archipelagic states had taken in the Caracas session (L.49), the Philippines proposed the paragraph be reworded so that an archipelagic state would only be required to “take into account…the recommendation or technical advice of competent international organizations” when it designated a sea lane or prescribed a traffic separation scheme. Indonesia went a step further. Its paragraph followed the one proposed by the Philippines in most respects but deleted any reference to the designation of sea lanes: an archipelagic state would have to take into account the advice of the competent international organization when it prescribed a traffic separation scheme but would not have to do even that when it designated a sea

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lane. Except for a proposal from West Germany to ensure that the provisions of the paragraph applied to the substituting of sea lanes as well as to designating them in the first place there were no other proposals to amend the paragraph. The final paragraph of article 124, paragraph 12, containing the stipulation that if an archipelagic state did not designate sea lanes then “the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation through the archipelagic waters,” was fundamental to its whole structure. This was accepted by all delegations. The big question was whether paragraph 12 should refer to air routes as well as sea lanes. The US, West Germany, and the USSR all proposed adding such a reference, while Indonesia and the Philippines were happy to leave the text pretty much as it was precisely because of the absence of any reference to air routes.57 Again the matter was left to Aguilar’s judgement. The Second Committee had begun 26 April by reviewing article 119. Now, five articles, dozens of proposals, and hundreds of interventions later that same day, it moved on to review article 125. Article 125, which like several other of the remaining articles in part VII was taken virtually word for word from the comparable article in the section dealing with transit passage, set out in some detail the obligations of ships and aircraft exercising the right of archipelagic sea lanes passage:

1. Ships, and aircraft, while exercising the right of archipelagic sea lanes passage shall: (a) Proceed without delay through the designated sea lanes; (b) Refrain from any threat or use of force against the territorial integrity or political independence of the archipelagic State or in any other manner in violation of the Charter of the United Nations; (c) Refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress; (d) Comply with other relevant provisions of this section. 2. Ships in transit shall: (a) Comply with generally accepted international regulations, procedures and practices for safety at sea…; (b) Comply with generally accepted international regulations, procedures and practices for the prevention and control of pollution from ships. 3. Aircraft in transit shall: (a) Observe Rules of the Air established by the International Civil Aviation Organization under the Chicago Convention

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(b)

as they apply to civil aircraft; State aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation; At all times monitor the radio frequency assigned by the appropriate internationally design[at]ed air traffic control authority or the appropriate international distress radio frequency.

The two most far-reaching proposals to amend this article came from the Philippines and Indonesia. The Philippines amendment fundamentally changed the article by deleting any reference to aircraft, the reference to archipelagic sea lanes passage as a “right”, and the words “incident to their normal modes of”, which all understood to allow submarines to transit while submerged. The Indonesian amendment to the article also changed it radically but in a far less straightforward way. First of all, it deleted the reference to aircraft in article 125(1). As a result, that paragraph now applied only to ships. These ships, according to the amendment, would not only be required to proceed without delay but also be forbidden to “engage in any activities other than those relevant to continuous and expeditious transit”. In addition they were required to refrain from any threat or use of force not only against the territorial integrity and political independence of the archipelagic state but also against its sovereignty and security. Indeed, they were required to refrain from any such threats or uses of force against any other state as well. Like the Philippine version the Indonesian amendment deleted “incident to their normal modes of”. Finally, the amendment transformed beyond recognition the way article 125(3) dealt with aircraft. Just how it did this requires careful explanation. Unlike the draft articles that the Indonesians had prepared for the Geneva session the Indonesian amendment to article 125(3) contained provisions for civil aircraft. However, it effectively rendered archipelagic sea lanes passage meaningless for the most important category of civil aircraft, namely, those undertaking scheduled flights. “The overflight of civil aircraft over the sea lanes of the archipelagic waters”, so the Indonesian text stated, “shall be regulated in accordance with the rules and regulations of the International Civil Aviation Organization under the Chicago Conventions relating to overflight above the territory of a State.”58 This wording circumvented what was for the Indonesians a major problem in the way the convention, to which Indonesia became a party in 1950, defined “the territory of a State”. According to article 2 of the Chicago Convention, which was negotiated in 1944, long before the concept of archipelagic waters came into being, “the territory of a State shall be deemed to be the land areas and territorial waters adjacent under the sovereignty, suzerainty or mandate of such State”.59 The Indonesian amendment in effect declared that, however the convention defined

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the territory of the state, the convention applied as much to an archipelagic sea lane in, say, the middle of the Java Sea as it did to the island of Java and the waters adjacent to its coast. Thus, the flight of civil aircraft over a sea lane would, most importantly, be subject to article 6 of the convention, which prohibited the operation of scheduled international air services over or into the territory of a contracting state “except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization”.60 All this was a roundabout way of ensuring that, say, a Qantas jet on a scheduled flight from Sydney to Singapore would gain no advantage whatsoever by flying over a sea lane crossing Indonesia’s archipelagic waters. Such a flight would be subject to bilateral agreement between Indonesia and Australia exactly like any other flight through Indonesian airspace. As a consequence, the existence of archipelagic sea lanes would in no way weaken the great bargaining power that the Indonesian government enjoyed in the negotiation of bilateral air service agreements. Indeed, this was the Indonesians’ primary motivation for trying to amend article 125(3) in this way. Building on the draft articles that the Indonesians had prepared for the Geneva session, the Indonesian amendment to article 125(3) also transformed the way it dealt with state aircraft. State aircraft would, according to the Indonesian text, be required to “overfly above the sealanes over a specified altitude as designated by the archipelagic State”. There was no mention of what that altitude might be. State aircraft also had to “maintain radio contact with, and follow instructions from, an appropriate ATC tower of the archipelagic state”. In other words, a US air force jet, for example, would be bound not only to inform an archipelagic state’s air traffic control tower of its movements but also to follow its instructions. Such a requirement would completely undermine what was for the superpowers and their allies the whole purpose of archipelagic sea lanes passage. A total of seven states including Bangladesh, Libya, Yemen, and Morocco supported or expressed interest in various elements of Indonesia’s amendments to article 125. The maritime states remained silent.61 Whereas article 125 described the obligations of ships and aircraft undertaking archipelagic sea lanes passage, article 128 gave archipelagic states the right to make laws and regulations relating to various aspects of such passage. First the Philippines and then Indonesia proposed identical revised versions of this article. Their version of the article differed substantially from the article as it stood in the SNT. Whereas article 128 in the SNT listed all the subjects on which an archipelagic state might make laws and regulations, the Philippine-Indonesian version opened with a statement that an archipelagic state “may make laws and regulations…in respect of, inter alia, all or any of the following [matters]”. In addition to giving archipelagic states the licence implied by “inter alia” the Philippine-Indonesian version included a much longer list of matters on which an archipelagic state had the right to make laws and regulations. Subject to the provisions of part VII such a state would have

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the right to make laws and regulations regarding not only (as in the SNT) the safety of navigation, the prevention of pollution and fishing, and the regulation of customs and immigration but also the protection of the marine environment, the conservation of marine resources, the installation and protection of various structures located in sea lanes, and “the preservation of the peace, good order and security of the archipelagic State”. While all such laws and regulations would be subject to the provisions of part VII the Filipinos and Indonesians were determined to give themselves as much authority over what went on within and under any archipelagic sea lanes traversing their archipelagic waters as they possibly could. A total of nine states either supported their amendments or (in the case of China) supported them “in principle”. Again the maritime powers were silent. Continuing its gruelling review of the passage provisions, the committee turned to article 129. Article 129 made the flag state of any ship or aircraft subject to sovereign immunity that violated any of the provisions dealing with archipelagic states or any laws and regulations made in accordance with article 128 and caused loss or damage responsible for that loss or damage. The Philippines and Indonesia offered amended versions of article 129 that were identical except for the omission of any reference to aircraft in the Philippines’ version. Again, they wanted to change the character of the text in fundamental ways. Whereas article 129 as it stood in the SNT dealt only with ships and aircraft subject to sovereign immunity, the Indonesian version covered all ships and aircraft. It made the owner of any ship or aircraft that caused damage or loss or acted in violation of any of the provisions “of these articles” (presumably those dealing with archipelagic states) “liable to compensate the archipelagic State or its nationals…for such damage, loss or violation”. And it made the flag state responsible for the compensation if the owner of such a ship or aircraft failed to provide “immediate and full compensation”.62 Just four states expressed their support for either the Indonesian or the Philippine version (three of them supported both). Up to this point the maritime powers had stayed silent during the review of the passage provisions of part VII except when they had offered their own amendments or supported those proposed by other delegations. Now, however, two maritime states, the UK and France, were moved to object “strongly” to the Philippine and Indonesian proposals even though so few states had supported them. They objected among other things to the way the proposals provided for liability even if no damage or loss occurred and to the responsibility they placed on flag states to pay any compensation not paid by the owner of a ship or aircraft.63 Once again the Philippines and Indonesia had proposed amendments the maritime states could not accept. Satisfying the maritime states was of course not their purpose. They were prepared to make certain concessions—somewhat more in Indonesia’s case than in the Philippines’—but otherwise their goal was to preserve their sovereignty in every way possible. When the committee turned to article 130, the final article

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it considered on 26 April, they proposed an amendment that they hoped would leave no doubt about the sovereignty an archipelagic state had over its archipelagic waters. As it stood, article 130 simply stated that the provisions dealing with archipelagic states were “without prejudice to the provisions of article 6”, which dealt with the drawing of straight baselines along deeply indented coastlines or around islands fringing a coast, but the Indonesians and Filipinos saw this article as a vehicle for reaffirming an archipelagic state’s sovereignty over its archipelagic waters. On the eve of the Geneva session the Indonesian government had, as we saw, drafted a provision declaring that none of the provisions concerning passage “shall be construed as (limiting) (prejudicing) the sovereignty of the archipelagic state over its archipelagic waters”. Going slightly further, W43 had contained the declaration that none of the passage articles “shall be construed as limiting or prejudicing the sovereignty of the archipelagic State over its archipelagic waters, including the sealanes”. Nandan had for unknown reasons not included such a declaration in the SNT. Now, first the Indonesians and then the Filipinos tried to have included as a new paragraph in article 130 a declaration that was identical to the one Nandan had left out except that it referred to the entire convention rather than only to the passage articles. There was, however, little enthusiasm in the committee for the paragraph.64 Indonesia’s attempt to have a reaffirmation of an archipelagic state’s sovereignty over its archipelagic waters included in the negotiating text had, so it seemed, failed a second time. On 27 April, after finishing up the review of article 130, the committee moved on to the final, and most explosive, article in part VII, article 131, the sole article in section 2, “Oceanic archipelagos belonging to continental states”. The committee had inevitably touched on this article at the start of its review of part VII when the US and USSR had proposed changing the title of part VII to “Archipelagic states”. At the very least their proposal meant that archipelagos belonging to continental states would not be considered in part VII. The implication was that such archipelagos would not be considered anywhere in the convention but because the committee was reviewing the text article by article there were at this point no proposals to delete article 131. As it stood, article 131 merely stated that “The provisions of section 1 are without prejudice to the status of oceanic archipelagos forming an integral part of the territory of a continental State”. It did not specify what that status might be. Now the time had come either to give some substance to the concept of “oceanic archipelagos forming an integral part of the territory of a continental State” or to expunge any mention of such archipelagos. Bahrain and Poland both proposed deleting article 131. Twenty-six states, including the USSR, US, Thailand, Turkey, Japan, UK, and Australia, supported this proposal. Spain and Greece “strongly opposed” it, while Colombia and Ecuador proposed new versions of article 131 that allowed a continental state (in the words of Ecuador’s proposal) “with one or more archipelagos which form an integral part of its territory [to] apply to them, mutatis mutandis, the provisions” relating to

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archipelagic states. The Ecuadorian representative told the committee that unless the convention contained such a provision his government would almost certainly not sign it. Support for the Colombian or Ecuadorian proposals or variations of them came from about ten states, including India, Greece, Spain, and Canada. At some point in the review the Soviet representative stated (according to the US notes) that the USSR “would strongly resist” any extension of the archipelagic concept to the archipelagos of continental states, since in its view such an extension posed “a threat to navigation and the common heritage of mankind”. With one exception the archipelagic states, sticking to their tactic of letting others undertake the task of eradicating any mention of archipelagos of continental states from the text, remained silent during the review of article 131. The exception was a statement by Indonesia that “the archipelagic concept provided in article 131 should be separated strictly from the archipelagic concept” provided in the section dealing with archipelagic states. Just like Djalal’s statement on this subject during the Caracas session this was an attempt to distance the archipelagic states from the position being taken by India, Ecuador, Colombia, and Greece without directly attacking that position. If the “concept” provided in article 131 was going to sink, the concept of an archipelagic state should not go down with it. The review of article 131 brought the review of part VII to an end. It would be up to Aguilar to decide whether to leave article 131 as it was, change it, or delete it altogether. In the meantime the committee moved straight on to reviewing the last few articles in the SNT/Part II.

THE REVISED SINGLE NEGOTIATING TEXT After fifty-three informal meetings of the Second Committee, over a thousand proposed amendments, and over 3700 interventions Aguilar was left with the task of revising the SNT. He rewrote those articles for which there was in his judgement “a clear trend favouring the inclusion of a particular amendment or where I was given a mandate to make a change within agreed limits”. He also rewrote articles that did not meet either of these criteria when he judged that it would be useful to point the way to a possible solution. Most articles, however, he left exactly as they were. In a few cases this was because although a large number of delegations were dissatisfied with the article there was no clear trend towards an alternative and he judged that any attempt to propose a solution would be “counterproductive”. Articles dealing with the status of the EEZ, the rights of landlocked states to exploit the resources of the EEZ, the definition of the continental shelf, the delimitation of the EEZ and continental shelf between opposite and adjacent states, and, it appears, the regime of islands were among those he left as they were for this reason. In the great majority of cases, however, he left articles as they were because “no amendments commanding other than minimal support were introduced”.65

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Presumably Aguilar was following this principle when he decided to leave the articles dealing with transit passage pretty much as they were. Certain straits states and their supporters had made a huge effort to change the transit passage regime but most states were satisfied with it as it stood. Among them were a few states that previously had been sympathetic to the straits states’ cause but had become alarmed by some of their proposals. A couple of weeks after the review of the straits articles one key member of the group, Malaysia, signalled that it would be prepared to make concessions “so long as the freedom of passage does not affect the national security of Malaysia as well as protection from and compensation for pollution”66 but we do not know whether this development influenced Aguilar’s handling of the transit passage regime. In any case, adding “sovereignty” to the list of the attributes of a state that a ship or aircraft transiting a strait used for international navigation was required to refrain from threatening or using force against was one of the very few changes that he made to the regime. Aguilar left part VII much as it was too, but he did make a few changes, some of which were of enormous importance. The following were the main features of chapter VII in the Revised Single Negotiating Text (RSNT/Part II):67

Definition and delimitation The boldest and, for the RSNT/Part II as a whole, most fundamental change that Aguilar made was to change the title of the chapter from “Archipelagos” to “Archipelagic states”, delete the two section headings (“Archipelagic states” and “Oceanic archipelagos belonging to continental States”), and delete article 131. The text now made no mention whatsoever of archipelagos belonging to continental states. This was a change that the “hard-liners will find hard to accept”, Nandan noted with some understatement.68 The definitions of an archipelagic state and an archipelago remained exactly as they were in the SNT. Most of the articles dealing with baselines—article 118 in the SNT and 119 in the RSNT—remained the same as well but Aguilar made two notable amendments. First, he changed “straight baselines” to “straight archipelagic baselines”. Second, he inserted the figure proposed by the maritime powers into the blank in the second paragraph: the length of the baselines “shall not exceed 80 nautical miles, except that up to one per cent of the total number of baselines…may exceed that length, up to a maximum length of 125 miles”. Aguilar probably assumed that he was merely providing the starting point for future negotiations. But he may also have calculated that the leading archipelagic states could live with a figure of just one percent if they really had to, especially since they could always insert a lot more short baselines in order to gain a few more long ones. Jurisdictions Aguilar left these articles (119 and 120 in the SNT, 120 and 121 in the RSNT) regarding the delimitation of the territorial sea and other jurisdictions from the

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archipelagic baselines and the sovereignty of an archipelagic state over its archipelagic waters exactly as they were. Gradually, step by step, certain basic concepts were becoming the way virtually everyone viewed the idea of an archipelagic state.

The Malaysia problem The Indonesians appear to have resumed consultations with the Malaysians right after the review of article 118(7) but the two sides failed to reach an agreement. On 29 April the Malaysian delegation formally submitted the amendment it had informally proposed during the review of part VII.69 By the time Aguilar came to finalize the RSNT there was still no agreement. He therefore left the paragraph exactly as it was.70 That paragraph, now in the RSNT as article 119(7), of course came from the amendment that the Malaysians had submitted at Caracas and that the Indonesians had finally agreed to accept at Geneva. For the time being the Malaysians were stuck with a paragraph of their own making that they now disavowed. There would have to be further talks after the fourth session. Rights of neighbouring states On 27 April, the day after the review of article 122, the US ambassador to Singapore called on Rajaratnam to ask for his support for the Americans’ push to hold another session in 1976. The foreign minister immediately referred to the aide-memoire the government had handed the US a few days earlier. If having a convention meant that Singapore would have to give up its rights in seas that Indonesia claimed as its archipelagic waters and territorial sea, he said, it would be better to delay the next session or to have no convention at all. He told the ambassador that Singapore wanted to work out a bilateral agreement with Indonesia guaranteeing the continuation of “traditional rights”. Because of its fear that a future Indonesian government might abrogate such an agreement Singapore would then press for recognition of those rights in international law.71 In fact, the Indonesian, Singaporean, and US delegations and apparently the Thais as well were already in intense discussions about how to revise article 122 in a way that would satisfy both Indonesia and its neighbours. The result of the discussions, in which the Americans “consulted closely with Amb[assador Tommy] Koh and other members of [the] Singapore delegation” but at Koh’s request did not endorse Singapore’s position publicly,72 was that Indonesia and Singapore submitted the following version of the article on 28 April: Without prejudice to article 120, archipelagic States shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. The terms and conditions of the exercise of such

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rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals.73 The reference to article 120 emphasized the archipelagic state’s sovereignty over the waters in question. More specifically, it meant, according to Djalal, that Singapore had finally recognized Indonesia’s sovereignty over its archipelagic waters.74 There was, as the Indonesians had almost certainly demanded, no explicit reference to military activities. It would be left to bilateral negotiations to determine just what was covered by “other legitimate rights”. This was hardly the guarantee in international law that the Singaporeans had been looking for but in view of the way Indonesians regarded the waters covered by Law No.4 it was probably the best they could hope for. Since article 122 had been amended to the apparent satisfaction of all the parties with a genuine interest in it, Aguilar incorporated the Indonesia-Singapore text into the RSNT word for word as article 123(1) except to change the reference to “article 120” to “article 121” because of the renumbering of the articles. That still left the question of what to do with Japan’s amendment concerning submarine cables and Indonesia’s proposed rewording of that amendment but this was easily resolved. As a result of further discussions the two delegations agreed to have incorporated into the RSNT (as article 123(2)) the following words that artfully combined their two proposals: Archipelagic States shall respect existing submarine cables laid by other States and passing through their waters without making a landfall. Archipelagic States shall permit the maintenance and replacement of such cables upon receiving due notice of the location of such cables and the intention to repair or replace them.

Passage Aguilar left the article dealing with innocent passage (now article 124) exactly as it was and made only minimal changes to the article dealing with the right of archipelagic sea lanes passage (now article 125). The main change was simply to add “or air routes” to paragraph 12, thereby removing any doubt that aircraft could exercise the right of archipelagic sea lanes passage through routes normally used for international navigation if the archipelagic state did not designate such routes. The most notable feature of article 125 in the RSNT was that Aguilar left the figures regarding the width of archipelagic sea lanes blank just as they were in the SNT. Nandan proposed that the width “not be less than 48 nautical miles or 60 per cent of the distance between the nearest points on islands bordering the sea lane” but Aguilar “was unwilling to attempt such a compromise formula at this

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stage”.75 Thus this highly contentious issue would have to be left to a future session to address. Aguilar made one further change to the passage provisions. This change concerned the articles dealing with the duties of ships and aircraft (previously article 125), the duty of the archipelagic state not to hamper archipelagic sea lanes passage (previously article 126), and the laws and regulations an archipelagic state could make in relation to archipelagic sea lanes passage (previously article 128). Rather than either revising them or leaving them as they were he replaced all of them with a new article, article 126, that simply stated that the three corresponding articles in the section dealing with transit passage (38, 40, and 42 in the RSNT) “apply mutatis mutandis to archipelagic sea lanes passage”. Either at the time or somewhat later, he told Hasjim Djalal that he did this because “without mutatis mutandis the article would be too long”.76 Whether or not that was really his main consideration, archipelagic sea lanes passage was as a consequence, as Nandan put it, “equated more directly to transit passage through straits”.77 The tone of Nandan’s report suggests that he welcomed this change. The Indonesians did not. Whatever else it was, archipelagic sea lanes passage was, for the Indonesians, different from transit passage. At the very least it had to appear to be different. Previously the two regimes had many provisions that happened to be virtually identical but were at least in different parts of the text; now, in the RSNT, archipelagic sea lanes passage was explicitly linked to transit passage by article 126. *** Except to add (by means of article 126) “sovereignty” to the list of the attributes of a state that a ship or aircraft exercising the right of archipelagic sea lanes passage was required to refrain from threatening or using force against Aguilar had incorporated none of Indonesia’s amendments into the negotiating text. The negotiating text still contained “in the normal mode”, described archipelagic sea lanes passage as a right, gave that right to aircraft as well as ships, did not give archipelagic states the right to confine the passage of warships to sea lanes or to require state aircraft to fly above an altitude designated by the archipelagic state, required an archipelagic state to gain the approval of the “competent international organization” before designating archipelagic sea lanes, and contained no statement that none of the provisions of the text should be construed as prejudicing an archipelagic state’s sovereignty over its archipelagic waters. Moreover, Aguilar did not adopt the proposal supported by Indonesia to allow up to 5 percent of archipelagic baselines to be longer than 100 miles (up to a maximum of 125 miles) but instead inserted the figures proposed by the maritime powers. Then, on top of all that, he had in one respect actually made the RSNT worse than the SNT from the Indonesian point of view by linking archipelagic sea lanes passage much more closely with transit passage than the SNT had. Nevertheless, the new text had achieved a number of things important

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to the Indonesians. It went some way towards resolving Indonesia’s differences with Singapore and Thailand and it had avoided a potentially serious dispute with Japan by giving other states the right to maintain and replace submarine cables passing through archipelagic waters. Most important of all, the RSNT had further entrenched the archipelagic concept as a trend in international law. Again no state had attacked the concept during the session. Indeed the maritime powers seemed to be on the verge of accepting the concept as it was set out in the RSNT, provided of course that the question of the width of sea lanes was resolved to their satisfaction. For all its shortcomings, the RSNT at least promised international recognition of the archipelagic concept. “In private discussions with the Indonesians,” Nandan reported, “we gained the understanding that they can in fact accept the existing text if worst comes to worst. This was disclosed to us on the basis of the highest confidentiality.”78 During the closing stages of the session the delegates debated whether to hold the next session in 1977 or in just a few months’ time. Most delegations very much preferred 1977, since they wanted time to consider the text in detail and hold consultations with other states. The Americans, however, were desperate to finalize a convention before unilateral action by the US Congress regarding the most contentious issue before the conference, seabed mining, wrecked the chances of a convention.79 Following heavy-handed pressure from the US government the conference reluctantly agreed to hold the fifth session in August 1976. The “long and arduous” fourth session came to an end on 7 May.80

CHAPTER 15

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From the Indonesians’ point of view the two most difficult problems they faced after the fourth session were how to overcome their differences with Malaysia and how to satisfy the demands of the superpowers concerning navigation and overflight but the government was determined to resolve both of them in the near future. When Mochtar spoke to the press on 15 May following a meeting with Suharto he said any remaining problems Indonesia had with its neighbours “can be solved amicably”. He also mentioned that the government would continue to engage in consultations with “the big maritime powers” in the hope of resolving the “delicate” problem of shipping and air routes.1 As it happened, the president had just offered a suggestion that Mochtar believed might help to resolve that problem.

PREPARING FOR THE FIFTH SESSION When Mochtar spoke with John Norton Moore, Bernard Oxman, and David Newsom in Jakarta before the Caracas session he casually referred to the difficulty that the concept of “passage areas” caused Indonesians. Actually, this was a fundamental difficulty, for as the Indonesians saw it the concept implied that there would be an area that would not be entirely under Indonesian sovereignty. The concept of a “corridor” or “sea lane” carried the same problem. At the time Mochtar had remarked that he was sure good lawyers could come up with a solution. In the event, the solution came not from a lawyer but from President Suharto himself. When Mochtar discussed the problem with Suharto during their meeting following the fourth session the president suggested that ships simply pass along an “axis line [garis sumbu]”.2 Since a line occupies no space it would remove no area whatsoever from Indonesian sovereignty. The concept was all about providing access rather than space.3 The notion of an axis had a recent precedent in Indonesian law. In April 1975 the defence minister, General Panggabean, had issued a decision in accordance with Regulation No.8 of 1962 designating a “special shipping channel [alur pelayaran khusus]” enabling foreign fishing boats to cross Indonesian waters from the Pacific 350

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to the Indian Ocean. The decision fixed an “axis [poros]” running from the Sulawesi Sea to the Lombok Strait and declared that the “width of the shipping channel from the axis line is a distance of 5 miles each side”.4 But whereas Panggabean made use of the concept of an axis as a convenient way to define a channel Suharto proposed that there be an axis line and only an axis line—there would be no channel or sea lane. Ships and aircraft would of course deviate somewhat to the left or right of the axis line but the assumption was that they would do so only insofar as they needed to in the normal course of navigation and flight. There would therefore be no need to specify just how far ships and aircraft could deviate from the axis line. Indonesia would no longer have to negotiate with the maritime powers over the width of archipelagic sea lanes. Now, so it was hoped, it would be possible to resolve the whole question of archipelagic passage in a way that satisfied both Indonesia and the maritime powers. According to Suharto’s own account, “the Head of State instructed [menginstruksikan] the Justice Minister, Mochtar Kusumaatmadja, to immediately fight [memperjuangkan] to have the archipelagic concept [konsep Wawasan Nusantara] recognized as part of the International Law of the Sea”.5 Whatever the details of these instructions, Mochtar began pursuing the campaign with renewed vigour. Immediately after talking with Suharto he flew to Singapore to discuss the remaining concerns its government had about the archipelagic concept. Singaporean officials later told US Embassy officers that “Singapore’s continued access to archipelagic waters for military training purposes…has been settled to [the] mutual satisfaction” of the two governments.6 During a televised interview on 25 May Mochtar emphasized that “Indonesia should strive for…acceptance [of the archipelagic concept] with the help of its neighbors”. His hope was that regardless of what happened at the conference the concept “may be implemented on the basis of custom”,7 meaning that he hoped it would become part of customary international law. In the midst of these events he arranged to meet Newsom early in June.8 That meeting led in turn to plans for consultations between the Indonesians and two of their US counterparts, Bernard Oxman and Max Morris, in Jakarta a few weeks later. The consultations took place on 30 June and 1 July.9 On the first day Mochtar hosted a four-hour dinner for Oxman and Morris at which Sudarmono and Djalal were also present, and the next day Sudarmono and Djalal had a further meeting with the Americans. The Indonesians took the opportunity to unveil their new concept of axis lines. Ships and aircraft, they explained, could transit “as far from [the] line as necessary for passage”. Far from welcoming this initiative as a means of breaking the impasse over the width of sea lanes, the Americans were concerned that the vague wording would almost inevitably lead to disputes and asked whether it would be acceptable to Indonesia to specify just how far a ship or airplane could deviate from the line. The Indonesians replied that it would not be but did not categorically rule it out. A related question was whether the archipelagic sea lane

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passage provisions should cover civil aircraft. Sudarmono explained that Indonesian civil aviation authorities “have difficulty applying [the] right of overflight to civil aircraft because this weakens Indonesian ability to negotiate [the] right of overflight of other countries”. Djalal said that the convention should contain a clause specifically excluding civil aircraft from the provisions concerning archipelagic sea lanes passage. As they saw it, archipelagic sea lanes passage was designed to accommodate warships and accompanying military aircraft, not civil aircraft. The Indonesians had, it became apparent, differing views on whether there should be a provision requiring warships to navigate along sea lanes. Sudarmono was, according to the Americans’ notes, satisfied that warships would in practice navigate along the sea lanes “because of their practicality and the greater operational flexibility of archipelagic passage (e.g. air cover)”, but Mochtar and Djalal wanted the convention to contain a provision explicitly confining the transit of warships to sea lanes. Mochtar also expressed his strong preference to avoid any cross references between the articles dealing with archipelagic sea lanes passage and those dealing with transit passage “even if they say the same thing”. There was also some discussion of the transit passage regime itself. Mochtar observed that the Malaysians’ announcement during the fourth session that they were ready to reach an accommodation with the maritime powers had “pulled the rug out from under Indonesia” but he did not elaborate on how Indonesia would handle the question of straits during future sessions. The two sides did not attempt to resolve their many differences. The purpose of the consultations was simply to gain a better understanding of their positions and to set the stage for future negotiations. Sudarmono “raised [the] question of further discussions and agreement on [a] text”. The Americans responded that they would be happy to meet just before or at the start of the upcoming session. *** Immediately after these talks Oxman and Morris flew to Kuala Lumpur for a meeting with Abdul Kadir Yusuf, L.C. Vohrah, and Kadir’s assistant legal adviser on 2 July.10 The Malaysians confirmed their willingness to accept “unimpeded passage of straits” as long as the convention gave states bordering straits the authority to take various steps to reduce the likelihood of tankers causing damage and to recoup the cost of cleaning up the environment if they did cause damage. Though the Malaysians stopped short of accepting the transit passage regime, this shift was a welcome development from the Americans’ point of view, since up to the fourth session Malaysia had, as a Spanish delegate put it, “been together with Spain the most articulated defender of the regime of innocent passage”.11 If the Americans could do a deal with the Malaysians that gave them what they wanted—or at least enough to win their acquiescence—but fundamentally maintained the transit passage regime as it stood in the RSNT, then they could

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further isolate Spain, weaken the resolve of states such as Indonesia that still professed adherence to the innocent passage regime, and take a big step towards breaking up the straits-state coalition altogether. This was the strategy Oxman and Morris pursued when they met the Malaysians on 2 July.12 Much of the discussion concerned the implementation of the tripartite agreement of February 1975. Since that agreement senior officials and technical experts representing Malaysia, Indonesia, and Singapore had held several meetings on the safety of navigation in the Malacca Strait and consulted closely with the Japanese on this issue. Since there had already been agreement in June 1973 that ships transiting the waterway would be required to maintain an appropriate “safety margin”, the meetings had focussed on trying to agree on a minimum under-keel clearance (UKC).13 Initially, according to Hasjim Djalal, the Indonesians and Malaysians, wanting as great a safety margin as possible, insisted on an UKC of 4.4 metres, while the Singaporeans, hoping like the Japanese to restrict the flow of shipping as little as possible, argued that it should be 2.5 metres.14 After a number of meetings Malaysia had proposed an UKC of 4 metres while the Japanese had proposed 3 metres. This difference of one metre made a big difference, for according to the Japanese eighty tankers that would have been able to use the strait under their proposal would have been unable to do so if the Malaysian figure were applied. By the time Oxman and Morris visited Kuala Lumpur these negotiations had stalled and the Malaysians were becoming increasingly impatient. The Americans were alarmed by Kadir’s suggestion that Malaysia might legislate a minimum UKC because of the precedent this would set and proposed instead that as soon as the three coastal states and Japan reached agreement they should seek the endorsement of the IMCO. Kadir appears to have been satisfied with this suggestion but wanted the RSNT to be amended to make it clear that traffic separation schemes could include a minimum UKC. He also wanted the convention to give states such as Malaysia the power to enforce a minimum UKC that had been approved by the IMCO. Specifically, they would have the right to stop tankers that exceeded such a minimum. The two Americans were sympathetic to both of these proposals. They were, however, alarmed a second time when Kadir proposed reviving the idea advocated by Spain of establishing a group to negotiate the straits articles. Fearing that US could lose what it had gained in the straits negotiations up to that point, they argued that a straits negotiating group “would be highly politicized and doomed to confrontation and failure by its very composition” and that the best way for Malaysia to achieve its particular objectives would be to bring “the directly concerned states together informally at appropriate times”. And they told the Malaysians that the Americans would be happy to facilitate such discussions. The meeting also dealt with Indonesia’s archipelagic position. The Malaysians, so the Americans sensed, “seem suspicious of Indonesian motives for seeking to

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exclude civil aircraft” from archipelagic sea lanes passage. They also reiterated their insistence that the convention include an article dealing with the problem they faced in the waters between the two parts of Malaysia. Afterwards, Oxman and Morris were able to report that it appeared “that close and active cooperation between the two delegations on both straits and archipelagos is now possible”. *** Despite Sudarmono’s hint during the talks on 30 June-1 July that Indonesia might be prepared to reach agreement with the US in the near future the Indonesians were in fact proceeding with extreme caution. If Newsom’s conjecture was correct, Mochtar had little expectation that the US delegation was about to budge.15 And he was himself not ready to make concessions. When he met with Newsom on 26 July he commented that the recent consultations had brought Indonesia and the US “much closer” on law of the sea issues. Actually, they had come somewhat closer. Most notably, the Indonesians, so it seemed, had dropped their earlier insistence that an archipelagic state should have the right to require military aircraft to fly above a certain altitude designated by that state. But otherwise Indonesia’s position as Mochtar outlined it to Newsom differed little from the one it had presented during the fourth session. He even hinted that while Indonesia might be prepared to accept a provision allowing military aircraft to provide air cover for warships it might not be prepared to accept one that allowed them to undertake archipelagic sea lanes passage on their own. And once again he raised the possibility (the “beautiful solution”) of inserting a provision that for naval vessels undertaking archipelagic sea lanes passage “notification is not required but is recommended”. There was therefore no sign of a sudden resolution of the differences between Indonesia and the US. Part of the difficulty was Mochtar’s ever-present anxiety about how other members of the G77 might react to a sudden shift in Indonesia’s position. “Mochtar said,” so Newsom reported, “he hoped US would be understanding about [the] need for [a] certain amount of tactical maneuvering by [Indonesia] at [the] conference in order for Indonesia to keep in [the] good graces of other third world countries.”16 But at least as important was the Indonesians’ genuine dissatisfaction with the existing text. For both these reasons they would try to wring as many concessions from the maritime powers as they possibly could.17 If they wrung too hard they risked losing whatever support they already had from these powers but they appear to have made a calculated decision about just how far they could go without this happening. On the very day Mochtar was talking with Newsom Indonesian and Malaysian officials were meeting in Jakarta in the hope of finally resolving their differences concerning the waters between West and East Malaysia. The result was a

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memorandum of understanding signed on 27 July. This memorandum went a long way towards meeting Malaysia’s demands or, as Malaysians thought of it, satisfying its legitimate interests. The two parties agreed to replace article 119(7) of the RSNT with the following provision: If a certain part of the archipelagic waters of an archipelagic state lies between two parts of an immediately adjacent neighboring state, all existing rights and all other legitimate interests which the latter state has traditionally exercised in such waters and all rights stipulated under agreements between those two states shall continue and be respected. This wording removed the implication that Indonesia was somehow responsible for dividing the two parts of Malaysia but gave Malaysia what could amount to wide-ranging rights within Indonesia’s archipelagic waters lying between the Malay Peninsula and Borneo. The memorandum elaborated on what those rights might be by declaring that Indonesia would “continue to respect the legitimate and existing rights traditionally exercised in the Indonesian archipelagic waters lying between West and East Malaysia, especially the rights of access and communication through those waters whether by sea or by air, civil or military”. In return, so the memorandum stated, “Malaysia reaffirms the policy of its government to recognize and support the archipelagic state regime”.18 The memorandum also specified certain rights Malaysia would enjoy pending the conclusion of a bilateral treaty between the two countries. These included the right to engage in military manoeuvres but not with the involvement of third parties, to continue “traditional fishing”, and to lay new cables “after due notice”. The two delegations agreed that their governments would conclude a bilateral treaty before the final adoption of a convention at UNCLOS III. The memorandum of understanding was, as B.A. Hamzah puts it, “a major diplomatic breakthrough”.19 After more than two years of intensive discussions the two governments had apparently arrived at a position both could live with. The only remaining task was to negotiate a bilateral treaty. There was apparently no expectation that this would be particularly difficult. Since 1969 the Indonesians had concentrated much of their diplomatic effort on trying to gain the explicit or implicit recognition of the archipelagic concept from neighbouring states. In a press conference on 28 July, the day before he was to depart for the fifth session, Mochtar observed that Indonesia had resolved or was close to resolving the concerns of all but one of its Southeast Asian neighbours regarding the concept.20 The government had assured Thailand of access to fishing grounds in Indonesia’s archipelagic waters, reached agreement with Singapore over an article concerning access that had been inserted into the RSNT, and, most important of all, reached an understanding with Malaysia. The only neighbour

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with which Indonesia had major differences was Vietnam. The government in Hanoi continued to insist on using Borneo rather than the Natuna Islands as the starting point for determining the continental shelf boundary between Indonesia and Vietnam just as the government in Saigon had until April 1975. But this problem did not trouble the Indonesian government nearly as much as its differences with its other Southeast Asian neighbours had. Now that Thailand, Singapore, and Malaysia were on board Mochtar and his colleagues could concentrate on resolving their differences with the superpowers.21 Having the support of these neighbours gave them greater confidence in this task and improved their bargaining position. The delegation could leave for New York “with an easy feeling”, he said. One neighbour Mochtar did not mention during his press conference was Indonesia’s fellow archipelagic campaigner the Philippines. During the consultations on 30 June-1 July the Americans learned that Mochtar was planning a trip to Manila soon and “will try to bring [the] Philippines around”.22 On his return to Jakarta he told Newsom that the Filipinos were on a “nationalistic binge” as far as the US was concerned and were as determined as ever to maintain their position. Mochtar, so he told Newsom, explained to the Filipinos that because of their differing geographical situation and circumstances Indonesia would have to go on without the Philippines. “Mochtar said he thought [the] Filipinos understood and accepted this.” Whatever transpired in Manila Mochtar’s visit marked a further parting of the ways between Indonesia and the Philippines. He commented to Newsom “that he thought [the] Philippines [was] now largely irrelevant to settlement of [the] archipelagic question”.23 *** Despite its satisfaction with the progress it had made since the spring session the Indonesian delegation held grave fears for the future of the conference itself. At the end of the spring session there was, Miles observed, “almost a unanimous judgment that the conference was in great difficulty and that it might not be able to survive”.24 The source of greatest concern was the ongoing impasse over seabed mining in the First Committee. The Indonesians had recently taken a “harder line LDC [less developed country] stand” on the question of seabed mining than they had in the past but their main concern was that the conflict between the leading industrial states led by the US on the one side and developing states on the other could wreck the conference and ruin their chances of achieving the objectives they were pursuing in the Second Committee.25 Mochtar did not refer specifically to this issue during his press conference but he did say that he expected the fifth session to come to a “determination [penentuan]”. Unless the conference agreed on basic principles, he said, states would take steps to put their positions into effect unilaterally.26

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THE FIFTH SESSION After expressing sympathy with the people of China over the great loss of life in the Tangshan earthquake Amerasinghe began the summer session on 2 August by urging the delegates to “proceed immediately to negotiations”.27 Rather than review the RSNT article by article the Second Committee decided to set up negotiating groups dealing with what it regarded as the issues requiring the greatest attention. It began by setting up negotiating groups dealing with the status of the exclusive economic zone, the definition of the outer boundary of the continental margin and the sharing of revenue from the exploitation of the continental shelf beyond 200 miles, and access to the sea by landlocked states. None of these issues were central to Indonesia’s archipelagic campaign. Thus, while the work of these groups got underway the Indonesian delegation devoted much of its attention to gaining support for the changes it wanted to make to chapter VII of the RSNT. At least in relation to the US and Australia it was making little progress. The US delegation reported on 6 August that “Indonesia privately circulated hard line amendments restricting transit of archipelagos” and that in “long private discussions” with the US the Indonesians had “pressed for elimination of right of transit for civil (but not military) aircraft”. None of these proposals were acceptable to the Americans but they were receptive to the Indonesian idea of axis lines, since the “effect for our purposes would be the same” as the notion of sea lanes.28 A few days later the Indonesian Embassy in Canberra wrote to the Australian Department of Foreign Affairs asking for its support for the Indonesian amendments. The department would normally respond to such a request by promising to give the proposals careful consideration but on advice from the Australian delegation it did not do so on this occasion. “While firmly re-affirming its support of a special regime for waters within the Indonesian archipelago,” it replied, “the Department is of the view…that the amendments as presently drafted, do not provide satisfactory guarantees with respect to passage through and over archipelagic waters.” The department was particularly alarmed by the proposal to exclude civil aircraft from the provisions of archipelagic sea lanes passage.29 In the midst of these various exchanges with the US and Australia the Indonesians were also holding discussions with the Soviets. One of the most important subjects they discussed concerned the width of sea lanes (or, more precisely, the distance ships would be able to deviate to each side of an axis line). The Americans still insisted on a width of 60 miles (30 miles to each side), while the Indonesians maintained their position that if there were to be a width it should be 20 miles (10 mile to each side). Without consulting with the Americans the Soviets told the Indonesians that they would agree to a width of 40 mile (20 miles to each side). They also agreed to delete the words “in the normal mode” from the definition of archipelagic sea lanes passage in the RSNT. These concessions alarmed the Americans when the Soviets told them about them a few days later. The Soviets

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had undermined the superpowers’ negotiating position regarding the width of sea lanes. But the Americans were even more disturbed by the Soviets’ willingness to remove “in the normal mode”. Deleting those words, they explained to the Soviets, “prejudiced submerged transit”. At a later meeting the Soviets agreed that the words “in the normal mode” should remain in the text but did not renege on their new position regarding the width of sea lanes.30 The Indonesians had made progress on that point at least. As these events unfolded, the Third Committee was considering an issue that had a direct bearing on the Indonesians’ interests in the Malacca Strait. This issue, illustrative of the complexity and interconnectedness of the problems the delegates were dealing with, concerned the power of states bordering straits used for international navigation to enforce laws and regulations concerning pollution in those waters. Article 40 of the RSNT/Part II (the text produced by the Second Committee during the fourth session) gave states bordering such straits the power to “make laws and regulations relating to transit passage” in respect both to the “safety of navigation and regulation of marine traffic” and the “prevention of pollution by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait”. This second subject—laws and regulations related to the prevention of pollution—was of course central to the work of the Third Committee. As it happened, the RSNT/Part III (the text produced by the Third Committee) gave coastal states extensive powers to enforce laws and regulations they had made to prevent pollution in their territorial seas and economic zones. Article 30(2), for example, gave a state that had “clear grounds” for believing that a vessel navigating in its territorial sea had violated laws and regulations it had established in accordance with the convention “for the prevention, reduction and control of pollution from vessels” the power to inspect that vessel and, “when warranted by the evidence of the case”, to arrest it. But the RSNT/ Part III also contained another article, article 42, that was intended to safeguard the transit passage regime in the RSNT/Part II. It proclaimed, very simply, that nothing in the relevant sections of that chapter of the RSNT/Part III “shall affect the legal regime of straits used for international navigation”.31 Did this article mean that a state bordering a strait would have little or no power to enforce any laws and regulations it had made in relation to pollution in the case of ships engaged in transit passage? Fearing the worst, the Malaysian representative, who made a point of expressing his government’s “extreme distaste” for the article, made two or three attempts to have it expunged from the text. On the last of these occasions Trinidad and Tobago, China, and the Philippines came to his support.32 A week later, however, the Malaysians instead proposed a new version of article 42 that would, so they hoped, satisfy both states bordering straits and those states that were determined to protect the transit passage regime.33 On the one hand, it made it clear that the articles in

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the RSNT/Part III concerning the power of coastal states to prevent pollution applied to straits used for international navigation just as they did in other waters under their jurisdiction. On the other, it contained the assurance that any laws established in accordance with those articles “shall not have the practical effect of denying, hampering or impairing the right of transit passage as defined in [the RSNT/Part II]”. Whether the Third Committee gave detailed attention to this proposal is unclear from the available record. In any case, the issue remained unresolved as the committee turned its attention to other matters. On 20 August the Second Committee set up two more negotiating groups, one dealing with straits used for international navigation and another with the delimitation of boundaries between opposite and adjacent states. Both because of the position they had taken in relation to the Malacca Strait and the link between the transit and archipelagic sea lanes passage regimes the Indonesians took a particular interest in the work of the first of these new groups when it met for the first time on 7 September.34 The Malaysian representative, taking up in a new form the campaign Malaysia had been pursuing in the Third Committee, began the discussion by announcing that his government would be prepared to accept the transit passage regime if the interests of straits states were treated “somewhat more equitably”. The convention, he argued, should take into consideration the grave dangers to the environment associated with navigating shallow straits. He then presented a large number of amendments to the transit regime in the RSNT/ Part II.35 In one of these Malaysia tried yet again to make sure that the convention would only require the straits state to “take into account” the recommendations of “competent international organisations” when prescribing traffic separation schemes. In another it tried, in effect, to give the three states bordering the Malacca Strait the right under international law to require ships passing through the strait to have a minimum UKC and to stop them from transiting if they failed to satisfy that minimum. Under the Malaysian amendment the straits states would have the right to impose such a minimum after they had consulted with “the competent international organization”. Even with such major amendments Malaysia’s willingness to accept the transit passage regime placed the Indonesians in an awkward position. On the one hand, they still maintained that passage through straits used for international navigation should be subject to the innocent passage regime just like passage through any other part of a state’s territorial sea. On the other, they needed to work closely with Malaysia on the straits issue and wanted to continue to improve their relations with their neighbour. In the discussion that followed the presentation of Malaysia’s amendments Hasjim Djalal therefore chose his words with special care. Unlike the Iranian representative he did not explicitly advocate application of the innocent passage regime or oppose any provision for overflight, nor did he propose as China did that warships be required to obtain authorization or give notification before transiting a strait. Instead, according to the Americans’ notes, he simply “noted that

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[the] RSNT is unbalanced in favor of navigation, that it does not adequately protect the straits state’s resource or environmental interests, and that Malaysia’s concerns are shared”.36 Up to this point the Indonesians had not had a forum at which to give their views on chapter VII of the RSNT but their chance came on 9–10 September when the Second Committee gave delegates the opportunity to raise issues not covered by any of the six negotiating groups.37 The purpose of this exercise was not entirely clear, since as Aguilar pointed out he had no mandate to revise the text. He suggested that those delegates interested in particular topics might hold further discussions and then forward any proposals to him but did not say what he would then do with them. In any case, Hasjim Djalal seized the opportunity to make a “lengthy intervention on [the] archipelago chapter”. He began by informing the committee of the amendment to article 119(7) that Indonesia and Malaysia had agreed on in July. He then presented the other amendments Indonesia wanted to make to chapter VII. First, Indonesia wanted to ease the restrictions on the drawing of straight archipelagic baselines in article 119(2). Under its amendment the length of such baselines could not exceed 100 (rather than 80) miles with the exception that up to 5 (rather than 1) percent of the lines could exceed that length (up to a maximum of 125 miles, as in the RSNT). These changes would enable the Indonesian government to satisfy article 119(2) without having to redraw the system of straight baselines in Law No.4. Djalal then outlined amendments to the passage provisions in articles 124 and 125. Innocent passage should, he said, only apply in archipelagic waters normally used for navigation, not to all of an archipelagic state’s archipelagic waters, and civil aircraft should have no right of archipelagic sea lanes passage. He also proposed amending the text to take away the power of “the competent international organization” to make decisions regarding sea lanes and traffic separation schemes. Objecting to the phrase mutatis mutandis in article 126, he proposed that that article should be replaced with articles dealing specifically with archipelagic sea lanes passage. Finally, apparently without mentioning the idea of axis lines, he commented that there should be further negotiations on the width of sea lanes. Egypt, Tunisia, and Saudi Arabia expressed their support for all these proposals, while Iran recorded its support for the Indonesian position on overflight. Cape Verde then proposed that as many as 30 percent of the archipelagic straight baselines could be longer than 100 miles (whether the upper limit of 125 miles remained in effect is not clear). This whole discussion, focussed as it was on archipelagic states, provoked the Indian representative to object to the failure of the RSNT to treat archipelagos belonging to continental states the same as it did those belonging to states made up entirely of islands. He was supported by Spain and Uruguay and opposed by Japan and two of India’s neighbours, Pakistan and Burma. This fundamental question was still far from determined.

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In fact, these special meetings of the Second Committee appear to have settled very little. As Aguilar implied, what really mattered were the discussions taking place among the delegations most interested in particular topics. As it happened, the Indonesians and Americans continued to try to find agreement.38 At some point the Americans “offered to adjust criteria to 100 miles and 3% provided that Indonesia will agree to sealanes 60 miles wide”. This was a major concession by the US but the Americans might be pressured to concede even more in relation to the width of sea lanes because of the Soviets’ willingness to accept lanes as narrow as 40 miles wide. Djalal told Australian delegates that he expected agreement on the criteria and the width of sea lanes in the near future. Under no circumstances, however, were the Americans prepared to compromise on their position that the right of archipelagic sea lanes passage should be available to aircraft of all types. The Indonesians’ last chance to push their position on passage in a formal setting came on 15 September when the straits negotiating group held its final meeting.39 On this occasion the US, USSR, UK, and eleven other states including Japan, Kuwait, Norway, and Bulgaria spoke in favour of the RSNT. But there were signs that the maritime powers might be willing to make at least some amendments along the lines the Malaysian representative had proposed at the first meeting. The USSR, so the Americans’ notes recorded, “made a bow to [the] Malaysian amendments” and encouraged intersessional consultations on the straits regime. There were other signs of movement. The Spanish again put forth their long-held view that passage through straits should be subject to the innocent passage regime but indicated that they might be able to accept submerged transit by submarines if Malaysia’s amendments were incorporated into the RSNT. Finally, the Indonesian representative (presumably Djalal) again stopped short of rejecting the RSNT out of hand. Instead he “observed that [the] interests of straits states [are] not adequately taken into account, concluding that it is premature to assume [the] RSNT is a final text”. *** During the course of his conversations with Australian delegates at the fifth session Djalal contradicted the position that Mochtar had conveyed to Peacock in April concerning the principle that Indonesia would adopt in negotiating a boundary between the two countries’ economic or fishing zones. His view was, he said, that the boundary should follow the seabed boundary in the Arafura Sea, where that boundary followed the median line, but not in the Timor Sea, where the boundary had been largely determined on the principle of natural prolongation.40 That meant that in the Timor Sea Indonesia’s EEZ would overlap a large area of the seabed under Australia’s jurisdiction. Australian officials were in no way concerned that the Indonesian government might adopt Djalal’s view, however, since they continued to worry that if Indonesia were to agree to a boundary that followed

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the existing seabed boundary “there might develop a sense of grievance which, in turn, might have the effect of threatening the stability of [that] boundary”.41 Oil mattered more than fish. *** The summer session, widely seen beforehand as “ill-advised and ill-timed” and afterwards as a “mistake”,42 came to an end on 17 September. Except in relation to the settlement of disputes the session produced no new texts, and the impasse over seabed mining deepened. During their final plenary on the 17th the delegates agreed to hold the next session in New York starting in May the following year. The plan was that “At the end of the sixth week, the President with the Chairmen of the Committees, adopting the collegiate method, would prepare an informal single composite text” and that the conference would then prepare a draft convention. In his final statement Amerasinghe expressed the hope “that, when the Conference resumed in another eight or nine months, the period of gestation would have produced something”.43 Though hardly the moment of “determination” that Mochtar had predicted, the session was by no means a disappointment for the Indonesians. The Americans had shown signs of giving some ground. In his report after the session Aguilar made special note of the agreement between Indonesia and Malaysia regarding a possible amendment to article 119(7).44 Most important, the Indonesians were, so Mochtar told Newsom afterwards, “pleased with [the] progress [Indonesia had] made in selling its archipelago proposals”.45 This assessment was not merely a means of putting pressure on the Americans, for the Indonesians had made progress. An Australian briefing paper observed that there was now “widespread support within the Conference for the archipelagic concept—a major triumph for Indonesian diplomacy”.46

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At least as far as the Indonesians were concerned it was much too early to speak of a triumph. They still had to secure the agreement of the superpowers, for without such an agreement any provisions concerning archipelagos would have little real meaning. The great difficulty in dealing with the superpowers was that for the most part they took identical positions on the question of archipelagos. The Indonesians tried to exploit the few differences that there were. Thus, when Mochtar spoke with Newsom after the summer session, he not only emphasized the support the archipelagic concept now had within the conference but also tried to play the Americans off against the Soviets. He portrayed the Soviets as being more cooperative and described the Americans’ position on the distance ships would be able to deviate from the axis line during archipelagic sea lanes passage—30 miles to the left or to the right—as “excessive”. Noting that the Indonesian delegation had made progress in talks with the Soviets during the summer session, he said that in view of Indonesia’s political orientation it would hardly be appropriate for it to reach agreement with the USSR before doing so with the US. That was why, he said, the Indonesians had not continued meeting with the Soviets but he then mentioned that he had been invited to Moscow for further talks before the next session. But there was only so far Mochtar could get by applying this sort of pressure on the Americans. By October 1976 Mochtar was in fact becoming increasingly anxious to reach agreement with them in the near future. The minister, so Newsom recorded, “welcomed the prospect of talks with [the] US early next year” and proposed that they should be at the “political” level rather than at the level of officials.1 Mochtar’s readiness to talk with the Americans was also apparent when, in late November, he rang Newsom to ask whether the ambassador was aware of a letter that Adam Malik had just written to Henry Kissinger, apparently in response to a letter the secretary of state had written to Malik and other foreign ministers during the summer session urging them to give careful consideration to proposals the US had concerning the exploitation of the seabed. When Newsom replied that he was not aware of Malik’s letter Mochtar said he was alarmed that it did not reflect the “considerable progress” that had been made in recent discussions between Indonesia 363

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and the US. Again he proposed ministerial-level talks and expressed the hope that they could be held in February. Newsom responded that “we, too, look forward to further discussions”, though because a new administration under Jimmy Carter would be in place by then he could make no promise regarding their level. He also assured Mochtar that he would suggest to the State Department that when Malik’s letter was given to the secretary it should be accompanied by a memorandum “call[ing] attention to [the] fact that it does not reflect recent progress”.2 An implication of Mochtar’s suggestion that the talks should be at ministerial level was that he rather than Sudarmono would lead the Indonesian side. As it happened, Sudarmono was appointed ambassador to the Philippines in December. His replacement as chief of staff for operations and head of Pankorwilnas was Rear Admiral Subroto Yudono.3 Because Subroto had no experience in the law of the sea there was some discussion of the possibility that Sudarmono would remain as the Ministry of Defence’s principal representative in the Indonesian delegation but this idea was dropped before too long. When Max Morris spoke with the minister counsellor at the Indonesian Embassy in Washington, Zahar Arifin, a former member of the Indonesian delegation, late in January, Zahar told Morris that “Dr. Mochtar was now in complete charge” of Indonesia’s law of the sea campaign.4 In his conversation with Morris Zahar reaffirmed the Indonesians’ desire to hold talks before the next session. “They want a deal and are ready to go to 40 miles [20 miles to each side of the axis line],” Morris reported. “They are eager for talks in Jakarta as a precursor to New York agreement.”5 In fact planning was already underway by this time. And it had just been announced that the leader of the US delegation would not be, as Mochtar had hoped, a current member of cabinet but someone who had held four cabinet positions during the Nixon and Ford administrations, the newly appointed Special Representative of the President to the Law of the Sea Conference, Elliot Richardson. By early February plans were in place for Richardson to visit Jakarta at the end of March after stops in Tokyo, Kuala Lumpur, and Singapore.

RICHARDSON IN JAKARTA While plans were being finalized for Richardson’s visit the Indonesian, Malaysian, and Singaporean governments took a big step towards resolving their differences over the regulation of shipping in the Straits of Malacca and Singapore.6 In December 1976, “after lengthy, intense, and sometimes difficult discussions and study”, senior officials meeting in Jakarta compromised on a minimum UKC of 3.5 metres, a figure that would effectively prevent loaded tankers of more than 250,000 DWT from transiting the strait. The meeting also recommended that the three governments establish a traffic separation scheme at three points in the

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strait and require deep draught vessels to use a special deep water route in the Singapore Strait. These recommendations were finalized at a further meeting in Kuala Lumpur on 12 February 1977. Then, on 24 February, during a meeting of ASEAN foreign ministers in Manila, the foreign ministers of the three straits states signed a “Joint statement on safety of navigation in the Straits of Malacca and Singapore” endorsing all of the recommendations.7 The statement made no mention of the still sensitive question of the status of the straits. The focus was entirely on measures to improve navigational safety and reduce the chances of further damage to the marine environment. But the statement did assume that the three states would have the power under international law to enforce any rules and regulations they made in accordance with the statement. If, as the Indonesians continued to maintain (though far less vigorously than they did before), the strait was subject to the innocent passage regime like any other waters belonging to the territorial seas of the three states, then the RSNT appeared to give them that power. If, as the majority of states assumed by this time, the strait was to be subject to the transit passage regime, however, such an understanding of the text was thrown into doubt by the presence in the RSNT/Part III of the article, namely article 42, that declared that nothing in the relevant sections of the chapter dealing with the protection and preservation of the marine environment “shall affect the legal regime of straits used for international navigation”. The tripartite agreement therefore gave added urgency to the question of whether article 42 should be deleted or radically amended. During the final stages of the tripartite negotiations Mochtar gave a lecture in Jakarta on the legal concept of an archipelagic state at UNCLOS III (see photograph 16.1).8 Aside from its elegant, nuanced analysis of the state of Indonesia’s campaign its most notable feature was a map roughly indicating the extent of Indonesia’s exclusive economic zone (see photograph 16.2). Here at last was a hint that the government might be considering making a declaration in the not too distant future. There was even what appeared to be confirmation of the view on boundary delimitation that Djalal had expressed to his Australian counterparts during the fifth session: the EEZ boundary in the Timor Sea was much further from Indonesia’s islands than the existing seabed boundary in that area. But the government was still proceeding cautiously on this issue. In the published version of his talk Mochtar made no mention of EEZs except to make the point that the great interest at the conference in the question of economic zones made it difficult for the archipelagic states to ensure that that their interests received the attention they deserved. And while the map accompanying the published version of the lecture sketched out Indonesia’s economic zone in most areas (see figure 16.1) the boundary in the Timor Sea that Mochtar had shown at his lecture had disappeared. By this time Mochtar had finalized plans he and Hasjim Djalal, who by this time was back in Jakarta as the director of treaty and legal affairs in the Department of Foreign Affairs, had to take part in intersessional negotiations in Geneva intended

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Photograph 16.1 Mochtar Kusumaatmadja giving a lecture on Indonesia’s archipelagic campaign, Jakarta, February 1977. Among those in the audience is Ahmad Subardjo (on the left hand side of the front row, wearing a goatee, batik shirt, and dark glasses).

to find a way out of the impasse in the First Committee and accepted the Soviets’ invitation to visit Moscow. As it happened, the Geneva negotiations appeared to have “pointed the way to eventual consensus” over the issue of seabed mining9 and also gave Mochtar a chance to speak with Richardson, apparently for the first time. Immediately afterwards, Mochtar and Djalal flew on to the Soviet capital for three days of discussions (and another day or two of sightseeing there and in Leningrad). A newspaper quoted a spokesman for the Indonesian Department of Foreign Affairs as saying that “the Soviet Union has shown a deep understanding of Indonesia’s claim of sovereignty of all the seas linking the thousands of islands that form the Indonesian Republic” and that “a number of important formulae have been approved which will become a basis for the Soviet support of Indonesia’s archipelago concept”.10 Miles observes that in 1977 the Soviets were making a point of giving “ostentatious support” to the G77 and that members of the group regarded this support as “cheap”, “because they knew the USSR knew the US would block most things the Soviets wanted to see blocked, because on those issues (straits, status of the EEZ etc.) the US and the USSR had identical interests”.11 The Indonesians did not share this assessment. Asked many years later whether the Indonesians had been playing the US off against the USSR by telling US negotiators that the Soviets were more accommodating, Djalal replied that “the

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Photograph 16.2 Map shown by Mochtar Kusumaatmadja during his lecture in Jakarta, February 1977

USSR was more accommodating! They were not ‘quarrelsome’ [the way the US was]. They supported our archipelagic claim.”12 Nevertheless, the gap between the superpowers was not great. Some sort of accommodation with the United States remained the key to settling the archipelagic issue. Just a few days after the Indonesians’ visit to Moscow the US delegation—Richardson, Morris, Oxman, Thomas Clingan, and Defense Department officials—began making its way to Jakarta by way of Japan, Malaysia, and Singapore. In Tokyo Richardson reiterated the US position on straits used for international navigation. Just as “warships of any country may freely use the high seas”, he told a press conference, so too could “warships of any country…freely transit international straits”.13 But this ringing reaffirmation of freedom of navigation did not mean that the Americans were opposed to making some concessions to Malaysia regarding straits. On the contrary, they believed that they had to make at least some concessions. Otherwise, they feared, Malaysia would try to reopen the straits package in the RSNT and support those straits states calling for the establishment of a negotiating group on straits. If this were to happen, the whole straits package could unravel, which in turn could make it even more difficult to resolve the outstanding issues in the archipelagic-states package. Thus the Americans would try to satisfy the concerns Malaysia had

Figure 16.1 Indonesia in February 1977

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about the straits package in a way that would persuade it not to reopen that package at the conference. Underlying this approach to the straits question was the assumption that Indonesia would go along with any understanding that the Americans reached with Malaysia. Back in January Mochtar had told Newsom that while Indonesia and Malaysia “saw eye-to-eye on the need to avert pollution in the straits” he “predicted that [the US] would find [Indonesia] more flexible than [Malaysia] on [the] straits question”.14 With these words in mind the Americans were confident that Mochtar would not object to any understanding they reached in Kuala Lumpur. From the Malaysian point of view the great problem with the straits package remained the lack of any clear statement that straits states would be able to enforce any regulations that they made in accordance with the straits articles. In particular, the Malaysians asked, would the three states bordering the Malacca Strait have the right to enforce an UKC of 3.5 metres? When the consultations began in Kuala Lumpur on 28 March the Americans made many attempts to persuade the Malaysian team led by Abdul Kadir Yusuf that the existing articles already allowed straits states to do this but Kadir remained unconvinced.15 They then suggested the possibility of an “interpretive statement” that “appropriate” maritime and straits states would present to the conference at some stage. The idea was that this statement would not be part of the convention itself but would acquire some standing merely by the fact that so many states were parties to it. Kadir was receptive to this suggestion but when the Americans presented him with a draft statement (that they apparently had ready) he immediately noticed that it made no explicit mention of enforcement. At this point the US delegation decided that it would have to do more to accommodate the Malaysians, for otherwise Malaysia would almost certainly try to reopen the straits package during the sixth session or, even worse, act unilaterally. As the Americans saw it, the key to finding a solution was to amend article 42 of the RSNT/Part III. As it stood, the article could be read as prohibiting any regulations that affected that regime including regulations mandating a minimum UKC. The Americans concluded that the US would go along with Malaysia’s efforts to revise article 42. Revising that article was, they reasoned, far more preferable to proposing changes to an article in the straits package, for any discussion of changes to that package would almost certainly open up discussion of other elements of the package certain states were unhappy with. The trick would be to revise article 42 in a way that gave the Malaysians what they wanted but preserved the “freedom” of transit through straits. During the fifth session Malaysia had proposed two new versions of article 42. The second of these had declared that the chapter dealing with the protection of the marine environment “shall apply to straits used for international navigation” provided that states bordering the strait in “establishing and enforcing national laws relating to the protection and preservation of the marine environment shall not have the

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practical effect of denying, hampering or impairing the right of transit passage” in Part II of the convention. This wording upheld the right of transit passage but placed the emphasis on the authority of the straits state. The Americans proposed a version that turned this around by retaining the opening words of article 42 as it stood and then adding a qualification. Thus, their proposed version of article 42 read as follows: Nothing in Sections 6, 7 and 8 of this Chapter of the Convention shall affect the legal regime of straits used for international navigation, provided however that the provisions of section VIII of this chapter shall be respected mutatis mutandis in the enforcement by states bordering straits of the laws and regulations referred to in article 40 of Part II of this convention with respect to foreign ships…. The great attraction of this wording from the US point of view was that it made explicit the right of “enforcement” without changing a word of the straits articles in Part II. Kadir was satisfied as well. In fact, he told the Americans that he thought their version of article 42 was “an improvement on Malaysia’s amendment, and met his concerns”.16 But it appears neither side regarded this rather indirect assertion of the right of enforcement as sufficient on its own. There would still, the two delegations agreed, be some sort of interpretive statement reinforcing that right. The Americans were receptive to one change that the Malaysians wanted to make to the straits articles in Part II. The Malaysians wanted to insert an article like the one in the archipelagic states package—article 127—that banned foreign ships from conducting research during transit. The Americans were happy to have such an article included but, in keeping with the approach they took throughout these consultations, suggested that the article be presented to Aguilar simply as a “technical” amendment that he could include without opening the existing articles to debate. The two delegations appeared to have made a big step towards closing the gap between them. Both sides acknowledged that the understanding that they appeared to be reaching was subject to consultation with other states but the US was prepared to acknowledge publicly that it had gone some way towards meeting the Malaysians’ concerns. The joint communiqué issued after the talks announced that “the United States agreed with Malaysia that for regulations to safeguard the Straits of Malacca, Malaysia and the other states bordering the straits needed the power to prevent nonconforming vessels from entering the straits”. Richardson also agreed “to the followup steps toward implementation of the measure”.17 After a brief stay in Singapore, where it discussed the traffic separation scheme, the archipelagic concept, exclusive economic zones, and seabed mining with Lee Kuan Yew, the defence minister, and foreign affairs officials the US delegation flew on to Jakarta.18

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The US government had by this time signalled its intention to make at least some concessions to Indonesia. In a letter to Adam Malik the secretary of state, Cyrus Vance, mentioned in particular that he had asked Richardson “to be prepared to negotiate an axis concept in lieu of corridors”. But Vance hoped that in return for this appreciation “of the importance you attach to avoiding [the] appearance of dividing the archipelago” the Indonesians would “find it easier to agree to [the] appropriate width of [the] area in which archipelagic sea lanes passage can be exercised”. He also reminded Malik that the US expected any support for the archipelagic concept on its part would be reciprocated by Indonesian support for the straits articles in the RSNT. As always, the Americans regarded the straits and archipelagic articles as inextricably linked. In a separate note to Newsom Vance asked the US ambassador to hand Mochtar a copy of this letter.19 For his part Mochtar continued to stress Indonesia’s flexibility on the straits issue. In a conversation with Newsom while the US delegation was in Kuala Lumpur he described Malaysia’s position as “extreme”. He added, however, that (so Newsom recorded) Indonesia “would for political reasons be obliged to support [Malaysian] amendments and changing [Malaysia’s] position would be left to others”.20 By this time detailed preparations had been made for the visit. The Indonesian team was to consist of Mochtar, Djalal, Munadjat Danusaputro, who was now an assistant to Mochtar, Brigadier General Wibhawa, who was the acting secretary of Pankorwilnas, and officials from the mines and communications ministries. There would be consultations on the morning of 31 March, a lunch hosted by Mochtar, further consultations in the afternoon, a reception and dinner hosted by Newsom, and further consultations the next morning.21 There apparently was an expectation that the two sides would issue a statement to the press afterwards, the first time they had taken this step. In the event, the consultations got off to a rocky start.22 In his opening remarks Mochtar made the point yet again that Indonesia was more flexible than Malaysia on straits. When he learned just how far Malaysia had gone in Kuala Lumpur, however, he “reacted negatively”, accusing the Malaysians of violating an agreement Malaysia, Indonesia, and Singapore had not to reach any agreement on straits without first reaching agreement with one another. It is quite possible that, as the Americans suspected, Mochtar had been hoping all along that the Malaysians would continue to take a tough line in their discussions with the US. In any case Richardson responded by stressing how much the US had conceded in Kuala Lumpur. Eventually, according to the US account, Mochtar “backed off somewhat, in the end characterizing the move as constructive, and reserving judgment pending consultations with Malaysia”. And over the course of a day and a half the Indonesian and US teams managed to make considerable progress towards closing the gap between them in relation to archipelagic states. As the US report put it, “the discussions revealed” a number of “technical amendments [that] could probably be agreed subject to consultation with others”.23

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One amendment was to increase the maximum length of archipelagic baselines from 80 to 100 miles while permitting as many as 3 (rather than 1) percent of the total number of baselines to be between 100 and 125 miles long. This was a compromise between the positions Indonesia and the US had previously taken. The US was happy to include the Indonesian-Malaysian text intended to give Malaysia access to Indonesia’s archipelagic waters lying between the two parts of Malaysia. It would be made clear in article 125(1) that air routes would be directly above sea lanes, in 125(3) that “the rights of navigation and overflight in the normal mode” would be “solely for the purpose of continuous and expeditious transit”, and in 125(4) that sea lanes and air routes would traverse “archipelagic waters” rather than “the archipelago”, thus overcoming the Indonesians’ concern that foreign aircraft might gain the right under the convention to fly over land. As Vance had already indicated, the Americans readily accepted the notion of axis lines. The Americans also agreed that article 126, in which certain provisions regarding transit passage were applied mutatis mutandis to archipelagic sea lanes passage, should be replaced with articles referring explicitly to archipelagic sea lanes passage. This would overcome the objection the Indonesians had to having passage through archipelagos linked so explicitly to passage through straits. Finally, there were signs that Indonesia and the US might eventually be able to agree on the distance foreign ships and aircraft could deviate from the axis lines defining archipelagic sea lanes. The Indonesians could accept a distance as great as 20 miles, while the Americans were willing to agree on a distance as small as 30 miles. “We got the impression,” the US delegation reported, “that Indonesia might agree to 50 [25 to either side] if we did, or agree to tell the Chairman of Committee II that the difference was between 40 and 60 [between 20 and 30 to either side].” At the same time, several important issues remained unresolved. The Americans reported that “Djalal seemed to be dropping his objection” to referring proposals for sea lanes to the IMCO for approval but the delegations reached no understanding on this matter. The Americans refused to accept any prohibition on warships exercising innocent passage outside sea lanes. When the Americans rejected out of hand an Indonesian proposal to limit the overflight of military aircraft to altitudes specified by the archipelagic states, the Indonesians “said they would not press the point” but that did not mean they would not press it on another occasion. According to an Indonesian report the two sides discussed the question of prior notification of warships but apparently they reached no agreement on this matter.24 But by far the biggest outstanding difference concerned civil aircraft. The Indonesians continued to insist that scheduled civil aviation in particular should not be able to take advantage of the right of archipelagic sea lanes passage, thereby avoiding the need to enter into bilateral agreements. The Americans replied that they would not agree to such a prohibition, since accepting it might well open up the straits package for renegotiation and since in any case they were in no position

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to agree when this question directly involved the interests of other states, namely, Australia and Singapore. There apparently was no movement on this subject by either side. There was one further matter which had the potential to thwart an accommodation between the two sides. This related to article 126. The Americans were happy to replace that article with provisions applying specifically to archipelagic sea lanes passage but only on the understanding that those provisions were identical to those related to transit passage (except, for example, to change “states bordering straits” to “archipelagic states”). The Indonesians, however, indicated that they wanted to place greater restrictions on archipelagic sea lanes passage than those that the RSNT placed on transit passage. For the Americans this was extremely worrying, not only because they opposed any further restrictions on archipelagic sea lanes passage but also because they believed that any changes to the provisions applying to archipelagic seas lanes passage could well pave the way for discussion about making corresponding changes to those applicable to transit passage. There was no indication of how far the Indonesians would pursue this matter. What was certain was that the US would fight tooth and nail to make sure that the regime for archipelagic sea lanes passage did not differ in any substantive way from the transit passage regime and that there were no changes to that regime other than those they were discussing with Malaysia. The only formal text to come out of the consultations was the joint press statement issued after the talks. According to this statement the two delegations “agreed that this…exchange was a significant step toward accommodation of their respective views” regarding transit passage and archipelagic states. They also agreed that they “would continue their consultations in the course of the forthcoming conference”.25 In a letter to Newsom afterwards Richardson remarked that the US delegation “came away from our visit…feeling as though we made headway in our relationship with Mochtar”.26 A fragment of Richardson’s notes from the consultations suggests that, for his part, Mochtar may have made some headway with the ambassador, for it records in detail the minister’s concerns about the damage supertankers were doing to the marine environment of the Malacca Strait.27 Immediately after the consultations the Americans scurried to shore up the understanding they had reached with Malaysia. They had two concerns. The first was that Mochtar would try to persuade the Malaysians to back away from that understanding. To prevent this from happening Newsom wrote to his counterpart in Kuala Lumpur asking him to tell Abdul Kadir as soon as possible about Mochtar’s dissatisfaction with Malaysia and make sure that Kadir remained committed to the understanding. As it happened, Kadir laughed off news of Mochtar’s dissatisfaction, saying that if he had known Mochtar was so sensitive he would have suggested that Richardson visit Jakarta first and that he knew of no agreement of the sort Mochtar referred to.28 The second concern related to

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the Soviet Union. Kadir was about to visit Moscow for consultations with Soviet officials. In an effort to dissuade the Soviets from making any further concessions to Malaysia US officials gave their Soviet counterparts detailed briefings on the consultations and tried to convey the importance of maintaining a common line with other members of the G5. One aspect of the understanding that concerned the Soviets was the idea of an interpretive statement. If there could be one on the question of enforcement, they asked, why couldn’t other delegations take the same step in relation to other aspects of the RSNT that they wished to see interpreted in a particular way? The US had no answer to this question.29 *** Sometime over the next few weeks the Indonesian government finalized the delegation it would send to New York.30 Following Sudarmono’s move to Manila the delegation took on a more civilian complexion, almost certainly a sign that Suharto was happy with the civilians’ work. Admiral Subroto was a member but not a vice chairman as Sudarmono had been, and there were only two other representatives of the Department of Defence and Security, namely, Commander H.A. Yahya and the navy’s hydrographer, Major Adi Sumardiman. Among the fourteen civilian members of the delegation were Mochtar, the chairman of the delegation as usual; Anwar Sani, now Indonesia’s permanent representative to the UN, who would be the delegation’s sole vice chairman; Hasjim Djalal, the delegation’s secretary; Nugroho Wisnumurti, now the second secretary to Indonesia’s permanent mission to the UN; Abdullah Kamil, now Indonesia’s ambassador to Austria; and Danusaputro. All of these officials had been part of Indonesia’s archipelagic campaign since at least the time of the Seabed Committee, as had Major Sumardiman.31 As chairman Mochtar had “the full authority of the President” to make decisions on behalf of the government.32

THE SIXTH SESSION The sixth session began on 23 May with a warning from Amerasinghe that unless the conference reached agreement “within the two forthcoming substantive sessions, it would be overtaken by events”.33 Following his suggestion, the conference agreed to devote the first three weeks of the session to the question of the exploitation of the seabed beyond the limits of national jurisdiction. During this period, however, the Indonesians met with their US counterparts on at least two occasions to discuss archipelagos. According to a US report the Indonesians continued to press for amendments that would exclude civil overflight from archipelagic sea lanes passage, give an archipelagic state the right to restrict state aircraft to “altitude blocks”, and increase the state’s rights over navigation. By the

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end of the third week of the session there was no resolution of any of these matters but the two sides agreed to meet again the following week.34 At the start of the fourth week, on 13 June, the Second Committee finally met to discuss the work it would do during this session.35 At that meeting Aguilar proposed that there be negotiating groups dealing with the three issues that in his view were of greatest concern to most delegations, namely, the status of the exclusive economic zone, the definition of the outer edge of the continental shelf, and the delimitation of the territorial sea, exclusive economic zone, and continental shelf between opposite and adjacent states. Some delegations wanted to set up a group to discuss straits used for international navigation as well but Aguilar argued that it would be better to leave this and a number of other issues to “informal consultations among those most interested”. Many delegates were confused about just how the work of the committee would proceed over the remaining weeks of the session. The chairman emphasized that he had no mandate to revise the RSNT and that there would be no changes to the text unless the committee authorized them. At the same time, hovering over the session, was the plan agreed to at the end of the previous session that “the President with the Chairmen of the Committees, adopting the collegiate method”, would prepare a composite text at the end of the sixth week. If the conference were to stick to this plan, then the president and three chairmen would in fact have a mandate to revise the RSNT regardless of whether the committees had explicitly authorized them to make particular changes. Though apparently no one made this point during the meeting on 13 June, the Indonesian representative’s intervention indicated that he understood where the real power to make changes was likely to lie. He agreed with the chairman that “certain issues can be dealt with directly by interested parties” and suggested that “such direct negotiations may at an appropriate time utilize your wisdom” and that “you or members of the Bureau might be helpful to bring together views of the parties”. During the meeting Aguilar mollified several delegates who were worried that their particular interests might not get adequately presented by raising the possibility of holding informal meetings dealing with “miscellaneous issues”. Despite all this uncertainty the committee agreed to adopt his proposals. Shortly after this meeting the Second Committee did decide to hold a series of informal meetings to discuss miscellaneous issues. On 23 June the Philippines proposed yet again that the article defining the width of the territorial sea allow exceptions to be made in the case of states that had historically had territorial seas wider than 12 miles and apparently rehearsed yet again the reasons the Philippines took this position.36 Aguilar appealed to the Philippine representative not to raise historical arguments and reminded him that “We are all aware of this background material”. Japan expressed the view that the convention be made up of “universally applicable rules” and the UK pointed out that “There are already extensive provisions on archipelagos”. Only Ecuador, El Salvador, and Kenya supported the Philippines before the committee moved on to other matters.

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On 27 June the committee turned its attention to chapter VII.37 The Philippines began the discussion by reading out its proposed amendments and, apparently at the same time, circulating a written version of these amendments. The only difference between this document and the one the Philippines had presented in 1976 was that this time the Filipinos added notes explaining their position. A number of these highlighted what they regarded as unfair aspects of the RSNT. One note argued, for example, that “Military or state aircraft should not be allowed overflight over archipelagic waters…in much the same way that this is not allowed in the territorial sea”.38 The Indonesian representative noted that like the Philippines Indonesia was unable to accept some of the articles in the RSNT and that some of the amendments it had presented in earlier sessions “are still before the Committee” but he avoided reference to any particular proposals. Scrupulously adhering to the approach he had adopted on 13 June, he told the chairman that “in accordance with your guidance” Indonesia had already undertaken negotiations. “Some of the contents of the amendments are subject of the consultations. [He] hoped that [a] solution could be found in those consultations in the near future and certainly during this session.” This discussion soon came to an end with Aguilar urging the Philippines to take part in consultations on this issue. “We cannot or should not set up a group on this.” If the Filipinos did not get on board soon, the chairman seemed to be suggesting, they would be left behind. Directly after the chairman’s appeal to the Philippines Ecuador launched yet another attempt to remove what it regarded as the discrimination in the RSNT against archipelagos belonging to continental states.39 Seven delegations immediately supported Ecuador’s proposal to insert into the text an article according to which the territorial sea, contiguous zone, and exclusive economic zone of “a group of islands forming part of the territory of a state” that conformed to the definition of an archipelago in article 118 would be determined in exactly the same way it would in the case of an archipelago belonging to an archipelagic state. There was, the Indian representative said, “no basis in law or logic for distinguishing between archipelagos”, while his Ethiopian counterpart described the absence of any reference to archipelagos belonging to continental states as “a conspicuous flaw in the Convention”. But after the West German representative reminded the meeting that the whole purpose of chapter VII was to ensure the national unity of states made up entirely of islands sixteen delegations—among them the USSR, Cuba, Pakistan, Thailand, and, most strongly of all, Turkey—expressed their opposition to the Ecuadorean proposal. Cape Verde asked the chairman to try to reconcile the two positions but he showed no interest in doing this. At last, it appeared, the push by Ecuador, India, and a small number of other states to give archipelagos belonging to continental states the same status as those belonging to states made up entirely of islands had been crushed. Following the stance they had adopted on previous occasions when the issue was raised, the Indonesian, Philippine, and Fijian representatives said nothing. Their best means of

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defeating India and Ecuador on this issue was to let Turkey, Thailand, and others do the job for them. By the time of this meeting the conference was embroiled in a dispute concerning the preparation of the informal composite text. There was by this time general acceptance that the text should be prepared using “the collegiate method” but there were also bitter differences about what that should mean in practice.40 Some delegations, including many from Asia, argued that the president should have the final say in drafting the text, while others, including many from Latin America, insisted that each chairman should have the final word on those parts of the text related to the work of his committee. Eventually, on 28 June, Amerasinghe issued a document suggesting “that it be left to the President to arrive at an understanding with the Chairmen of the three Committees on the working method they should adopt. The President will undertake the preparation of the informal composite negotiating text jointly with the Chairmen of the three Committees. It will be a team under the President’s leadership.”41 During a subsequent meeting of the General Committee he explained that in the event of disagreement the view of the relevant chairman would prevail but in the plenary that followed that meeting he did not repeat that explanation. In spite of the uncertainty about precisely how the text would be prepared the delegates agreed to accept the president’s suggestion. The delegates also accepted his proposal that during the time the president and chairmen were preparing the text “informal meetings could be held for the purpose of negotiations between interest groups holding divergent positions for the purpose of bringing them closer towards agreement” and that “The results of all such negotiations should be brought to the notice of the Chairmen…and the President as they would be helpful in the preparation of the composite text”.42 These words confirmed what the Indonesians already understood—the crucially important negotiations would not take place in the committees or even in groups set up by the committees but in meetings arranged by those delegations that took it upon themselves to try to resolve particular issues—but now it was official. As in the case of the preparation of the SNT the whole object of the game was to draft proposals that would win the support of the conference leadership, the only difference being that now that leadership, at least so it appeared, consisted of a “team” rather than each committee chairman acting on his own. Amerasinghe’s hope was that the composite text would be prepared over the following few days so that the delegates could then use it as the basis for further negotiation before the session ended. Even if this hope proved to be unrealistic (as it in fact soon did) delegations such as Indonesia’s that wanted to make changes to the RSNT had at the most two weeks to undertake negotiations and submit proposed revisions before the session ended on 15 July. There was not a moment to waste. Next to the consultations already underway concerning archipelagic states the most important negotiations for the Indonesians were those related to straits used for international navigation. The maritime powers continued to try to find a

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way to amend the regime in the RSNT in a way that would satisfy Malaysia and Indonesia in particular without undermining the freedom of navigation and overflight that were fundamental to their acceptance of any convention. In keeping with the understanding the US had reached with Malaysia in March the maritime powers readily accepted a Malaysian proposal of 30 June prohibiting foreign ships undertaking passage through a strait from carrying “out any research or survey activities without prior authorization of the States bordering [the] straits”.43 By this time, the Commentary observes, the matter was “not controversial”.44 More difficult was the question of amending article 42 of Part III of the RSNT. According to the US report on the third week of the session the USSR and UK were trying to “narrow” the version of article 42 that Richardson and Kadir had negotiated in Kuala Lumpur.45 In the fourth week the US and Malaysia were close to agreement but, according to the US, “Indonesia continues to be difficult on this issue”, perhaps because, as the Americans suspected, they “may be attempting to tie [it] to the archipelago negotiation”.46 By the first few days of July at the latest the Malaysian, British, and US delegations were working to find a solution that satisfied Malaysia, Indonesia, and Singapore and the maritime powers. Although it is not explicitly mentioned in the available sources, these discussions presumably included the idea of an interpretive statement along the lines of the one discussed in Kuala Lumpur. As these talks proceeded so too did private discussions on archipelagos. Perhaps partly because of Aguilar’s plea the Filipinos had a meeting with the Americans during the week of 27 June-1 July but this meeting yielded nothing, since, so the US delegation reported, the “Philippines continues to take an extreme position which has little, if any, support at the conference”. Because the Philippines was, as the US report suggested, effectively sidelined any settlement of the question of archipelagos lay primarily in the hands of the Indonesians and Americans. Following a meeting during the same week the US delegation reported that the “key outstanding issue is the question of the regime of civil overflight but no progress was made on that issue”. The Americans sensed that the Indonesians were “concerned that they reach some understanding with the US in order that the archipelagoes chapter of the consolidated text incorporate some of their desired changes”.47 Nevertheless, the Indonesian delegation was not quite ready to make any major concessions. On 6 July, by which time the conference had abandoned any hope of preparing the composite text in time to begin the next stage of negotiations before the end of the session, it circulated a document listing all the changes they wanted to make to chapter VII.48 Some of the amendments were the “technical amendments” discussed during the Jakarta consultations that, as the US had put it, “could probably be agreed subject to consultation with others”: 1. Article 119(2) was amended to allow as many as 3 percent of the total number of archipelagic baselines to be longer than 100 miles (up to the maximum of 125 miles).

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2. The Indonesians’ amendment to article 119(7) was taken virtually word for word from the understanding they had reached with the Malaysians the previous July. The only change was to delete “all” from the phrase “all existing rights”. Presumably this change, which could be interpreted as imposing slightly less of a burden on Indonesia, was made with the approval of the Malaysian delegation. 3. The Indonesian version of article 125(3) made it clear that archipelagic sea lanes passage would be “solely” for the purpose of transit. 4. Articles 125(1) and 125(4) were amended to make it absolutely clear that aircraft exercising the right of archipelagic sea lanes passage had to fly directly above a sea lane. 5. According to the amended version of article 125(5) sea lanes would be “defined by a series of continuous axis lines from the entry points of passage routes to the exit points”. The delegation signalled Indonesia’s readiness to negotiate on the distance ships and aircraft could deviate from the axis lines by leaving that distance blank. In addition to these amendments there were many others on which so far there had been no agreement. The most important of them were the following: 1. The Indonesian version of the article dealing with passage outside archipelagic sea lanes, article 124, gave foreign ships “the right of innocent passage through archipelagic waters in accordance with [the section dealing with innocent passage through the territorial sea] taking into account the appropriate routes used by foreign ships in transit”. This went slightly further than the Indonesians’ earlier position that foreign ships should enjoy the right of innocent passage only along routes customarily used for international navigation by hinting that it might be up to the archipelagic state to determine which routes were “appropriate”. There was, however, no mention of prohibiting warships from exercising the right of innocent passage along such routes. 2. Article 125(1) of the RSNT allowed an archipelagic state to “designate sea lanes and air routes suitable for the safe, continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea”. The Indonesian version of the article removed the word “safe”, which in this context carried the irksome suggestion that the archipelagic state might be responsible for ensuring the safety of foreign ships and aircraft during passage. 3. The Indonesians transformed article 125(2) of the RSNT—“All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes”—almost beyond recognition. Their version of article 125(2) gave “all ships” “the right of archipelagic sea lanes passage through” those sea lanes

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but gave the same right only to state aircraft and then only if they flew “at a specific altitude above such sea lanes as determined by the archipelagic state”. This wording represented the position the Indonesians had taken in relation to state aircraft during the fourth session. The Indonesians used their version of the paragraph as a vehicle for setting out a number of other positions that they had taken during earlier negotiations. First, the archipelagic state could require warships to obtain authorization before transiting outside a sea lane. Presumably, to be consistent with the amendment to article 124, any warship transiting outside a sea lane would still be required to navigate along an “appropriate” route. In any case, an implication of the amendment was that the innocent passage regime would be subject to prior authorization in the case of warships. Second, an archipelagic state would be able to require aircraft (presumably state aircraft) flying “outside the specified altitude or air routes” to obtain prior authorization. Finally, various other statements were added to reinforce the notion that civil aircraft would have no right of archipelagic sea lanes passage and would instead be governed by the Chicago Convention. 4. Article 125(3) of the RSNT defined archipelagic sea lanes passage as “the exercise…of the rights of navigation and overflight in the normal mode for the purpose of continuous and expeditious transit…”. The Indonesian text, in contrast, defined it as “the exercise…of the right of navigation and overflight solely for the purpose of safe, continuous, unhampered/uninterrupted/ unobstacled, expeditious and normal transit…”. Removing “in the normal mode” implied above all else that submarines would not necessarily be permitted to transit while submerged, while the addition of “normal” as a description of transit created greater scope than “in the normal mode” did in the determination of precisely what forms of transit met the definition of archipelagic sea lanes passage. Inserting “unhampered/uninterrupted/ unobstacled” (the Indonesians were yet to settle on the right word) was, in contrast, a concession to the maritime powers, since (unlike “continuous” and “expeditious”) it implied an obligation on the archipelagic state rather than on the ships and aircraft undertaking passage. But the insertion of the word “safe” as a further description of transit appeared to place a yet another obligation on ships and aircraft. 5. The Indonesians objected to the requirement in article 125(4) that the archipelagic sea lanes designated by an archipelagic state “shall include all normal passage routes, and, within such routes, so far as ships are concerned, all normal navigational channels”. Their version of the paragraph merely required an archipelagic state to “take into account the appropriate routes and channels used for navigation through the archipelagic waters” when designating sea lanes. 6. The Indonesians continued to find article 125(9) highly objectionable because of its requirement that archipelagic states refer proposals to designate sea

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lanes or prescribe traffic separation schemes to “the competent international organization” and gain the approval of that organization before finally implementing such proposals. Their version of the paragraph deleted any reference to the designation of sea lanes, reinforcing the idea implicit in their amendment to article 125(5) that this was solely a matter for the archipelagic state to deal with. Their version of article 125(9) referred only to the prescription of traffic separation schemes and only required the archipelagic state to be “guided” by any recommendations the “competent international organization” might make. 7. Objecting as they did to the way article 126 of the RSNT/Part II applied three of the articles dealing with transit passage, namely, articles 38, 40, and 42, mutatis mutandis to archipelagic sea lanes passage, the Indonesians proposed a single article dealing specifically with archipelagic sea lanes passage. Some of the provisions dealing with the duties of ships and state aircraft reinforced those in other articles. Thus, for example, ships engaged in archipelagic sea lanes passage would be prohibited from deviating more than the specified distance from the axis line, while state aircraft would be required to “overfly above the sea lanes at a specified altitude as determined by the archipelagic State”. The Indonesians went part of the way towards dropping one element of the position they had taken during the fourth session in relation to state aircraft that the major powers had found unacceptable: state aircraft would be required to maintain “radio contact with the appropriate ATC tower of the archipelagic State” but there was no mention of any requirement to follow that tower’s instructions. Nevertheless, the overall effect of the Indonesian article would be to place much stricter conditions on archipelagic sea lanes passage than on transit passage. This was exactly what the Americans had feared the Indonesians had in mind during the Jakarta consultations when they proposed replacing the mutatis mutandis article with one dealing specifically with archipelagic sea lanes passage. 8. Finally, the Indonesians proposed, much as they had on a number of earlier occasions, that the text contain an article proclaiming that “The regime of passage through sea lanes…shall not in other respects affect the status of the waters forming such sea lanes nor the exercise by the archipelagic State of its sovereignty over such sea lanes and their air space, bed and subsoil.” Djalal later described the principle embodied in this proposal as “the crux of the whole issue in our mind”.49 The particular formulation proposed by Indonesia very closely followed the wording of article 33(1) of the RSNT regarding the sovereignty of states bordering a strait over the “waters and…air space, bed and subsoil” of that strait. These amendments contained many provisions that the Indonesians had fought long and hard to have included in a convention and that the US had in turn said

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on a number of occasions it would never accept. The question was what to do next. The big problem from the Indonesians’ perspective was that it was becoming more difficult to maintain their position in its entirety, for it was unlikely that the conference, or at least those making decisions on behalf of the conference, would be willing to make major changes without the overwhelming support of those states with a direct interest in chapter VII. Despite its status as a negotiating text the RSNT carried a certain authority as the nearest thing the conference had to a draft convention and, particularly in the case of the RSNT/Part II, as the product of a genuine effort to balance competing interests. If the Indonesians were unable to have at least some of the important elements of their position incorporated into the ICNT they would almost certainly find it virtually impossible to have them incorporated into any subsequent text. Now was the time to negotiate with the Americans with the intention of reaching an agreement if at all possible. Although they had the advantage that the existing text reflected their position on passage, the Americans had, for their part, powerful incentives to make at least some concessions, since they wanted to maintain good relations with Indonesia, hoped to gain at least its tacit support for the US position on transit passage, and wanted to be able to focus on the seabed and other issues of great importance to the US. As always, they would never agree to any text that failed to give them what they regarded as adequate rights of navigation and overflight. But for them, as for the Indonesians, the time had come to make a final push to reach agreement. The next day, 7 July, the Second Committee held “at the persistent requests of the Spanish delegation” a meeting devoted solely to the question of straits used for international navigation. The Spanish delegate outlined amendments to the transit passage regime that had the overall effect of making transit passage similar to innocent passage. Among other things there would be no right of overflight. Several states either supported Spain or offered variations on the Spanish proposal. The only state to directly oppose Spain was the UK, which “intervened to state [its] opposition to any of the amendments submitted because they altered the delicate balance reached in the text”.50 Spain then appealed to the maritime states to consider its views. But the meeting soon fizzled to an end, largely it appears due to Aguilar, who, “anxious to adjourn the meeting, encouraged states to discuss the issues bilaterally or otherwise. He views the issue as essentially/hopefully closed.”51 There was now no big force pushing either to expunge the transit passage regime or to transform it radically. Neither Malaysia nor Indonesia spoke at this meeting. This was partly because of their expectation that the composite text would include the Malaysian proposal prohibiting research during transit. But it was also because at the time of this meeting the Malaysian delegation had either finalized its negotiations with the UK and the US regarding article 42 of the RSNT/Part III or was moments away from doing so. In any case, when the Third Committee met that day to discuss marine pollution the UK and the US joined Malaysia in sponsoring a proposal to amend article 42. A reworking of the proposal the US

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delegation had given Malaysia in Kuala Lumpur, the three-state proposal retained the sentence already in article 42 but added a further sentence declaring that if a foreign ship had violated laws and regulations made in accordance with article 40 of Part II “causing or threatening major damage to the marine environment of the straits” then the states bordering these straits “may take appropriate enforcement measures”.52 It was still not entirely clear whether an Indonesian or Malaysian patrol boat could stop a Japanese tanker from entering the Malacca Strait if it appeared that it had an UKC of less than 3.5 metres. But such a specific provision would have to wait for later. As it happened, the three-state proposal was just one of fifty-three proposals submitted to the Third Committee on 7 July. The delegate chairing this meeting had “stimulat[ed] the tabling of an overwhelming number of proposals” precisely to ensure that as few changes as possible would be made to the existing text.53 Unlike all the others, however, this proposal represented a negotiated solution acceptable to a large number of states. Malaysia had not achieved what it (and Indonesia) initially set out to achieve—a straits regime based on the innocent passage regime—but if both the amendment to article 42 and the proposal banning research during transit were incorporated into the composite text it would finally be able to accept the transit passage regime. There had been a breakthrough. On 8 July54 the Indonesian delegation led by Mochtar and the US led by Richardson met in an all-out effort to reach agreement on chapter VII. We have no official record of these discussions, which one member of the Indonesian delegation later described as “tough” and characterized by a great deal of “give and take”,55 but do know that they dealt with every one of the remaining differences between the two sides and that by the end of the meeting they had agreed ad referendum on a complete package of articles dealing with archipelagic states.56 The most important aspects of this package were as follows:57 1. In keeping with the understanding the two sides had already reached in Jakarta, article 119(2) read as follows: “The length of…baselines shall not exceed 100 nautical miles, except that up to three percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 miles”. This wording would enable Indonesia to comply with this element of the package without having to change Law No.4. 2. During the Jakarta consultations the Americans had already been happy to include in the convention the amendment to article 119(7) that Indonesia and Malaysia had agreed on in July 1976. The Americans now accepted the deletion of “all” from the phrase “all existing rights”. 3. Except for a minor change to make it clear that internal waters (such as Jakarta Bay, for example, might become if Indonesia were to draw closing lines across its entrance in accordance with the RSNT) would not be subject to the innocent passage regime the Indonesian-US version of article 124 was

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identical to article 124 as it stood in the RSNT. Thus, the Indonesians dropped their insistence that foreign ships navigating outside a sea lane would enjoy innocent passage only if they were travelling along “appropriate routes”. Such ships would now enjoy the right of innocent passage everywhere outside sea lanes. The two sides retained the paragraph in article 124 that allowed an archipelagic state to “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”. However, this form of words probably was of only limited practical value to the Indonesians, for, as Zahar Arifin had “frankly” told Max Morris in January, “they were reluctant to ever admit to ‘security problems’”.58 The Americans had already agreed that article 125(1) needed to be reworded to make it clear that air routes would be directly above sea lanes. They now agreed to replace “safe, continuous and expeditious passage” with “continuous and expeditious passage”. The Indonesians agreed to accept article 125(2) exactly as it stood in the RSNT. There would be no wording that effectively denied archipelagic sea lanes passage to civil aircraft or gave it to state aircraft only if they flew above an altitude designated by the archipelagic state. Nor would there be any provisions for prior authorization in any circumstance. Similarly, the Indonesians accepted the definition of archipelagic sea lanes passage exactly as it stood in article 125(3) of the RSNT except for adding the word “solely”. Thus the text the Indonesians agreed to contained the expression “in the normal mode” that the US and other maritime powers regarded as sacrosanct. As had already been agreed in Jakarta, “archipelago” was replaced by “archipelagic waters” in article 125(4). Otherwise, however, the requirement to designate “all normal passage routes” as archipelagic sea lanes and everything else in the paragraph remained exactly as it was in the RSNT. Since the Americans had already accepted Indonesia’s desire to incorporate the concept of axis lines into article 125(5), the only task for the negotiators was to fill in the blanks regarding the distance ships and aircraft would be allowed to deviate from the axis lines during archipelagic sea lanes passage. In the end, they agreed that ships and aircraft “shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that ships and aircraft shall not navigate closer to the coasts than 10 percent of the distance between the nearest points on islands bordering the sea lane”. A comparison between this proposal and the proposals that the two delegations had put forward during the fourth session would seem to suggest that the Indonesians conceded slightly more than the Americans did. The total of 50 miles (25 to each side) was exactly half way between the figure of 80 miles the Americans had proposed during the fourth session and the figure of 20 miles

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the Indonesians had proposed on the same occasion. However, the stipulation that ships and aircraft could navigate no closer than 10 percent of the distance between the islands on either side of the axis line was (at least when the islands were no more than 62.5 miles apart) mathematically equivalent to the proposal US had put forward in the fourth session that the width of a sea lane be no less than 80 percent of the distance between the islands. But such comparisons have limited value, for as the Indonesians saw it the formula agreed to on 8 July embodied an entirely new way of thinking about the route along which foreign ships and aircraft would be travelling. After speaking with Mochtar in late 1976 the legal adviser to the Australian Department of Foreign Affairs had predicted that by using the concept of axis lines rather than sea lanes “Indonesia will find it easier to accept proposals for a broad passage track”.59 Although the Indonesian delegation would not accept a “track” as wide as the Americans had initially wanted, that is precisely what happened. 9. Whereas article 125(9) as it stood in the RSNT explicitly required an archipelagic state to refer proposals to the competent international organization “Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes”, the version agreed to by the two sides required it to do so “In designating or substituting sea lanes”. This amendment gave the archipelagic state slightly more flexibility concerning the sequence of events but did not change the requirement that it refer proposals to the organization at some point in the process. 10. The two sides agreed to replace article 126, which applied articles 38, 40, and 42 of the transit passage regime mutatis mutandis to archipelagic sea lanes passage, with articles dealing specifically with archipelagic sea lanes passage. While this overcame one of the Indonesians’ greatest objections to the RSNT, these new articles conformed to articles 38, 40, and 42 in every respect except of course to make it explicit, for example, that an archipelagic state “may make laws and regulations relating to archipelagic sea lanes passage”. They included none of the provisions the Indonesians had proposed three days earlier. Thus, for example, there was no mention of state aircraft being required to maintain “radio contact with the appropriate ATC tower of the archipelagic State” or being required to “overfly above the sea lanes at a specified altitude as determined by the archipelagic State”. Indeed, there was no specific reference to state aircraft at all except in the requirement taken directly from article 38 that they “will normally comply” with the rules of the air established by the ICAO and “at all times operate with due regard for safety of navigation”. There was, in addition to all this, nothing in the new articles that could be taken as implying that archipelagic sea lanes passage would not be available to civil aircraft. Apparently, however, this did not concern the Indonesians greatly, since the revision to 125(1) requiring aircraft

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undertaking archipelagic sea lanes passage to fly directly above a sea lane at all times meant that in practice civil aircraft would almost never be making use of it.60 11. Finally, there was “the crux of the whole issue”. The Indonesians insisted that the package contain a declaration that the regime of passage through sea lanes would not “in other respects affect the status of the waters forming such sea lanes” or the archipelagic state’s sovereignty over its archipelagic waters, the airspace above those waters, and the seabed below them. At some point the Americans agreed to have such a declaration included in the package. This took the form of an additional paragraph in article 121, the article defining the scope of an archipelagic state’s sovereignty. The new paragraph, article 121(4), was in fact somewhat stronger than the one the Indonesians had proposed on 6 July, as it contained the assurance that the regime of archipelagic sea lanes passage would “not in other respects affect the status of archipelagic waters including the sea lanes”. The new paragraph also made it even clearer than the Indonesian text had that an archipelagic state had sovereignty over the resources in the seabed under a sea lane. The most notable feature of this package was that it retained nearly all the provisions concerning navigation and overflight that were in the RSNT. It did, however, adopt the Indonesian conception of sea lanes as defined by a series of axis lines. This mattered deeply to the Indonesians because of the implication, at least in their minds, that the archipelagic state had the same sovereignty over sea lanes that it did over the rest of its archipelagic waters. The new paragraph in article 121 made that sovereignty explicit. Beyond the question of sovereignty there were other aspects of the package that reflected elements of the position the Indonesians had taken on 6 July. The most notable of these concerned the rule governing baselines, the deletion of “safe” from article 125(1), the addition of “solely” to article 125(3), various changes that left no doubt that aircraft exercising the right of archipelagic sea lanes passage would be required to fly directly above a sea lane, and the removal of the irritating mutatis mutandis. All of these changes were important improvements to chapter VII of the RSNT as far as the Indonesians were concerned. But there was a catch. US negotiators had always made a connection between passage through archipelagos and passage through straits used for international navigation. There was from their point of view no point in gaining a “liberal” passage regime through archipelagic waters if they did not enjoy freedom of transit through straits. The US delegation therefore made it clear that it would accept the package it had negotiated with the Indonesians only if the transit passage regime remained as it was in the RSNT aside from the insertion of a ban on research and the addition to article 42 of the RSNT/Part III. Apparently there was no expectation that the Indonesians would announce their support for the

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(amended) transit passage regime. There certainly was an expectation, however, that the Indonesians would not oppose it. Having agreed to the archipelagic-state package ad referendum, and knowing the condition under which the US would be prepared to accept it, the Indonesian delegation had to decide whether or not the Indonesian government would officially endorse the package. Specifically, as Nugroho Wisnumurti was later to put it, the delegation “had to decide whether to accept the compromise solution that definitely did not achieve Indonesia’s maximum position or persevere with that position with the risk that provisions appearing in the draft law of the sea convention would be worse [lebih jelek] than the compromise provisions”. Ultimately, this “make or break” decision lay with Mochtar because of the authority Suharto had given him. To help him decide what to do the minister held a meeting of key members of the delegation in Ambassador Anwar Sani’s office almost immediately after the final meeting with the US delegation. At this meeting were, aside from Mochtar and the ambassador, Hasjim Djalal, Abdullah Kamil, and Nugroho Wisnumurti. After a discussion of “the pros and cons of accepting the compromise now—a discussion that was rather tense—Pak Mochtar finally decided firmly to accept the compromise solution”.61 Immediately after this decision the delegation informed the Americans that Indonesia had formally endorsed the package. By 9 July the US government had formally endorsed the package as well. At this point, according to an Australian report, Mochtar wrote a letter to Aguilar “containing [the] agreed amendments and [a] request that they be included in [the] composite text”. At an informal meeting of the Second Committee just two days later “Aguilar stated some delegations had reached agreement on amendments to [the] chapter on archipelagos and then went through the amendments in Mochtar’s letter”.62 Sometime during these proceedings the USSR, Japan, UK, France, and West Germany all indicated their approval of the package, as did all the other leading archipelagic states63 except for the Philippines. The US delegation also made it known that its acceptance of the package was conditional on retention of the (amended) transit passage regime.64 During the informal meeting of the Second Committee the only delegation to intervene on any of the “miscellaneous” items was Spain, which (according to a US report) “predictably stated its objections to the revised straits articles”.65 Now, so it seemed, it was up to the conference leadership team to take all this into account as they prepared the composite text.

THE INFORMAL COMPOSITE NEGOTIATING TEXT Behind the scenes the president and the three committee chairmen were rushing to prepare the composite text but they had not finished their work when the session ended on 15 July. When the Informal Composite Negotiating Text (ICNT) was

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released a few days later Amerasinghe explained in an accompanying memorandum that the “chairman of each Committee bears the full responsibility for those provisions of the informal composite negotiating text which are the exclusive and special concern of his Committee”.66 Thus, to refer to the matters that most concerned Indonesia, the parts of the text dealing with archipelagic states and straits used for international navigation as well as those dealing with the territorial sea, exclusive economic zones, and continental shelves had been prepared not by the “team” but by Andrés Aguilar. The grand vision of a “collegiate” text had come to nothing. Regardless of the method used to prepare it, however, those parts of the text that Aguilar prepared were from the Indonesian point of view either no worse or significantly better than the corresponding chapters in the RSNT. The following were the most important features of the ICNT from the Indonesian point of view:67 1. Whereas the RSNT was made up of four separate parts, the composite text, as its name suggested, took the form of one text covering the full range of issues discussed at the conference. It contained a total of sixteen parts, 303 articles, and a number of annexes. Rather than retaining the order of the four parts of the RSNT, the ICNT “was established on the principle that the most logical progression…would be from areas under national jurisdiction, such as the territorial sea, through an intermediate area such as the exclusive economic zone, to the area of international jurisdiction”.68 One consequence of this principle was that the part dealing with archipelagic states featured prominently as Part IV of the new text, coming immediately after those parts dealing with the territorial sea and contiguous zone and with straits used for international navigation and just before the part dealing with exclusive economic zones. 2. Despite the strenuous efforts of a small number of states including Spain that remained fundamentally opposed to the transit passage regime as it stood in the RSNT the only change Aguilar made to the regime was to insert as article 40 the Malaysian proposal of prohibiting foreign ships and aircraft from conducting research and survey activities during transit. Similarly, the chairman of the Third Committee made virtually no changes to the articles dealing with the protection and the preservation of the marine environment but he did insert as article 234 the proposal from Malaysia, the UK, and the US giving straits states the power to enforce regulations related to navigational safety and the environment. “This new provision,” Amerasinghe observed, “was the result of negotiations by a group of States most directly concerned with the implications of the safeguards provisions for straits.”69 The Americans’ strategy of isolating Spain by helping Malaysia to get what it had wanted by means of informal consultations had worked brilliantly.70 3. By far of greatest importance to Indonesia, Aguilar incorporated virtually every element of the Indonesia-US agreement into the ICNT, since, the

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president explained, “the States most interested in the subject [of archipelagic states] had reached agreement on the point”.71 Thus the ICNT followed the agreement of 8 July almost word for word in relation to the drawing of archipelagic baselines (article 47), innocent passage (article 52), and archipelagic sea lanes passage (article 53). The text also included as article 49(4) the declaration (“inserted with the agreement of all”72) that the archipelagic sea lanes passage regime would “not in other respects affect the status of archipelagic waters including the sea lanes”. But there were some differences between Part IV of the ICNT and the package agreed to on 8 July. The article allowing archipelagic states to designate sea lanes and air routes (53(1)) still referred to “safe, continuous and expeditious passage of foreign ships and aircraft”. The article defining archipelagic sea lanes passage (53(3)) described the purpose of such passage not as “continuous and expeditious transit” but as “continuous, expeditious and unobstructed transit”. The Indonesians had of course included “unhampered/uninterrupted/unobstacled” in the amendments they circulated on 6 July but for some reason no such word had been included in the amendments agreed to on 8 July. Finally, much to the disappointment of the Indonesians,73 Part IV retained as article 54 the article in the RSNT, article 126, that applied certain articles in the transit passage regime (now in Part II) mutatis mutandis to archipelagic sea lanes passage. The only difference was that the list of cross-referenced articles now included the newly inserted article 40. That article now took the place of article 127 of the RSNT. Thus, the prohibition against conducting research or survey activities during archipelagic sea lanes passage now existed because of a cross-reference to an article in the transit passage regime rather than as an article in the archipelagic sea lanes passage regime itself. 4. The ICNT went a long way towards consolidating the concept of an exclusive economic zone. Using the work of a group chaired by Jorge Castañeda of Mexico, Aguilar resolved the question of the status of the zone by incorporating into the text “deliberately ambiguous” provisions that allowed the US to “argue that it had maintained high seas freedoms in the zone” while those (mainly Latin American) states that had been pushing for 200-mile-wide territorial seas were able to “claim that the zone was not high seas”.74 5. Finally, despite intensive discussions during the session the ICNT did not resolve the deep differences that existed within the conference over the delimitation of the outer boundary of the continental shelf in cases where the shelf extended beyond the outer edge of the exclusive economic zone and the delimitation of the exclusive economic zone and continental shelf between opposite and adjacent states. As a result it followed the SNT and the RSNT in giving coastal states sovereign rights over the resources of their continental shelves but not specifying a means of determining the limits of those shelves and in providing that delimitation between opposite and adjacent states would

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be “effected by agreement in accordance with equitable principles, employing, where appropriate, the median or equidistance line and taking account of all relevant circumstances”.75 Neither issue was directly related to Indonesia’s archipelagic campaign but the way they were resolved would have a major bearing on the extent of the area Indonesia would be able to bring under its jurisdiction.76

BACK IN JAKARTA Although the articles in the ICNT dealing with archipelagic states differed on certain points from those in the Indonesia-US agreement, the Indonesian delegation was extremely satisfied with the outcome of the sixth session. After meeting with President Suharto on 26 July Mochtar told reporters that Indonesia’s archipelagic struggle (perjuangan) could now be described as a “success [sukses]”. For the first time, he said, nearly all the nations in the world—the United States representing the West, the Soviet Union as leader of the Eastern Bloc, neighbouring states, maritime and industrial states, states with great navies—had accepted the archipelagic concept. Although Indonesia would defend Wawasan Nusantara if it needed to, it was better, “considering the limitations of our strength”, to have international recognition. Wawasan Nusantara now had, he added, the “de facto” recognition of the world. In fact it had “already become part of the new draft of the international law of the sea!”77 The archipelagic provisions in the ICNT, he was to write later, constituted a “brilliant result [hasil gemilang]” for the Indonesian delegation.78 Similarly, Hasjim Djalal wrote a few months after the session that Part IV of the ICNT could “in general…be said to be the best result possible of Indonesia’s struggle to gain international recognition of Wawasan Nusantara”.79 During his press conference Mochtar apparently made no mention of how the ICNT dealt with straits used for international navigation but Djalal gave what may be regarded as the government’s view. While the text did not give Indonesia everything it wanted, he wrote, it did fulfil two of Indonesia’s objectives. First, by allowing states to have territorial seas as wide as 12 miles, it recognized Indonesia’s sovereignty over those parts of the Malacca Strait that were part of its territorial sea as defined by Law No.4. And, second, it gave Indonesia the power to make regulations concerning the safety of navigation through straits. Although the transit passage regime did not allow Indonesia to require submarines to travel on the surface or to ask warships to give prior notification of their transit, these aspects of the text created no problems in practice. This was because the Malacca Strait, the only passageway of concern to Indonesia that was covered by the regime, was so shallow that submarines had to navigate on the surface anyway and because “it is easy to monitor the passage of ships through such a narrow waterway”. Without referring to the pressure the US’s conditional acceptance of the archipelagic-state

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package placed on Indonesia to accept the transit passage regime, he concluded that the ICNT “basically resolves the question of straits transit”. Indeed, “Indonesia’s struggle to assert its sovereignty in (and under) the strait is finished.”80 Although the purpose of Mochtar’s press conference was to talk about the success of Indonesia’s archipelagic campaign, the reporters were much more interested in whether the government would now proclaim Indonesia’s exclusive economic zone. This matter had suddenly become an issue as several neighbouring states had either proclaimed such zones or announced their intention to do so. Just five days earlier Abdul Kadir Yusuf had announced on his return from the sixth session that a bill proclaiming Malaysia’s exclusive economic zone would be introduced during the next session of parliament.81 But Mochtar refused to say whether the Indonesian government had any such plans or even to explain why he was unwilling to answer. “Look for the logic yourself and do your own analysis,” he told the reporters. Kompas speculated that the government wanted to wait until the archipelagic concept was enshrined in a convention. It also suggested that the government might be hoping to avoid creating problems with Indonesia’s ASEAN neighbours by entering into bilateral negotiations with them before finalizing any proclamation. And it suspected that the government did not want to arouse the “jealousy [keirian]” of friendly states that had no coasts and therefore would be unable to claim zones of their own.82 These were all astute observations. The very last thing the government wanted to do now that it was about to gain international recognition of the archipelagic concept was to make any moves that might undermine the huge groundswell of support that it now enjoyed from around the world. It would proceed with extreme caution. In the meantime the greatest threat to the completion of Indonesia’s “struggle” was not a sudden loss of support for its position but the future of the conference itself. For the most part the chairmen of the Second and Third committees had changed the parts of the RSNT for which they were responsible only when they were certain that those changes represented a consensus or pointed the way to a consensus. The chairman of the First Committee, Paul Engo, had gone about his work in a very different way. During the sixth session delegates had, under the leadership of Jens Evensen of Norway, laboriously negotiated a text that most states including the US regarded as being at the very least a useful basis for further negotiation. Engo then ignored these negotiations and produced provisions that the US in particular found entirely unacceptable mainly because of the severe restrictions they placed on mining of the deep seabed by private companies. In a statement issued immediately after the release of the ICNT Elliot Richardson announced that he would recommend to President Carter that the US government “review not only the balance among our substantive interest but also whether an agreement acceptable to all governments can best be achieved through the kind of negotiations which have thus far taken place”.83 By casting a cloud over the prospects for a convention Engo’s actions accelerated the move by more and

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more states to make unilateral claims to various forms of maritime jurisdiction. As the principal Malaysian newspaper observed on the day of Mochtar’s press conference, “a trend is emerging of coastal states establishing legal precedents on their own as insurance against the likelihood that a law of the sea treaty may never get written”.84 The most worrying prospect was that the US would pass a bill allowing its companies to mine the deep seabed. The enactment of such a bill, Nandan observed, “could be…disastrous and may result in the total collapse of the Conference”.85 All this was happening at the very moment that the Indonesian delegation finally appeared to be on the verge of triumph.

CHAPTER 17

To Montego Bay Bay Montego To

Up to July 1977 the goal of the Indonesian government’s archipelagic “struggle” was to gain international recognition of the principles embodied in Law No.4 of 1960 and Regulation No.6 of 1962. The ICNT did not give Indonesian officials everything that they had fought for but they decided that it represented the best possible result in the circumstances. Leaving aside certain “editorial matters”, they accepted the archipelagic-state provisions as they stood. Now, as Hasjim Djalal put it, they needed to defend what Indonesia had gained and make sure that the provisions in Part IV were not “gnawed away [digerogoti] during future sessions” of the conference.1 As part of their archipelagic campaign they also needed to negotiate a treaty with Malaysia regarding Indonesia’s archipelagic waters between West and East Malaysia. Since the seventh session was not scheduled to begin until the end of March 1978 and there was apparently no urgency to conclude a treaty with Malaysia, however, they had a few months to focus on a number of other matters related to their campaign. The most pressing of these was the question of establishing a navigation scheme in the Straits of Malacca and Singapore. Four weeks after the sixth session a meeting in Penang of senior officials representing Indonesia, Malaysia, and Singapore drafted a traffic separation scheme for the waterway. Two months later experts from the three countries presented the scheme to the IMCO’s sub-committee on safety of navigation and after the three states accepted some minor amendments proposed by the IMCO’s experts the IMCO assembly endorsed the scheme on 14 November.2 The scheme elaborated in great detail the general principles that the three foreign ministers had agreed to in February. Various annexes established traffic lanes in the Malacca Strait, routes in the eastern entrance to the Singapore Strait, and deep water routes in the Singapore Strait. One annex set out “Rules for vessels navigating through the straits of Malacca and Singapore”. These required supertankers and deep draught vessels to maintain an UKC of at least 3.5 metres during passage, “recommended” that the masters of such ships “use the pilotage service” of the three countries when they became available, required deep draught vessels to use a designated deep-water route in one area and “advised” them to do so in another, “advised” supertankers and deep draught vessels “to navigate at a speed 393

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of not more than 12 knots”, and “advised” these types of ships “to participate in the existing voluntary ships’ reporting system”.3 At last the three states had established a navigation scheme that had (as Djalal put it) the “blessing and recognition” of an international body.4 There were, however, three major problems with the scheme. First, a great deal of work would be required before the three states could implement it. Neither Indonesia nor Malaysia, for example, would be able to provide many highly trained pilots. Second, Japan wanted a transitional period of five years during which ships would be able to transit as long as they maintained a minimum UKC of 2.5 metres.5 Finally, and most importantly, the IMCO, being a consultative body, gave the three states no authority to enforce the scheme, even those rules that were presented as being mandatory. Thus, the preamble to the IMCO resolution noted that the assembly “invites the Governments concerned to advise ships to comply with this resolution” and “requests the Secretary-General [of the UN] to advise all concerned” of the scheme.6 This weakness in the scheme made various provisions in the ICNT all the more important. Article 42 gave a state bordering a strait used for international navigation the authority to make laws and regulations regarding the safety of navigation and the prevention of pollution and protection of the environment. In addition, article 234 allowed such a state to “take appropriate enforcement measures” in relation to vessels that had violated rules and regulations established according to article 42 if they were “causing or threatening major damage to the marine environment of the straits”. But did all this mean that the three states would have the power to enforce the navigation scheme approved by the IMCO? The question that had arisen during the final stages of the sixth session remained unanswered: could an Indonesian or Malaysian patrol boat stop a Japanese tanker from entering the Malacca Strait if it appeared that it had an UKC of less than 3.5 metres? This question was of great importance to Indonesian officials because, having implicitly accepted the transit passage regime as part of their deal with the US, they wanted to ensure that that ICNT would be interpreted in a way that at least gave the three states real authority to protect the marine environment of the straits. At some stage something would have to be done to remove any doubts about that authority. Another question occupying Indonesian officials during this period was whether the government should finally take the step of establishing an exclusive economic zone. As Kompas had observed, the government did not want to jeopardize acceptance of the archipelagic concept by appearing greedy. A couple of weeks after Mochtar’s press conference on 26 July, however, the government came under even more pressure to declare an EEZ when Australian Embassy officials informed Hasjim Djalal that Australia intended to declare a 200-mile fishing zone.7 Unless the government made a declaration of its own it would be unable to negotiate EEZ boundaries with any of its neighbours. Thus, in late September Djalal explained to an Australian Embassy official that while Indonesia

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had up to that time concentrated almost entirely on gaining acceptance of the archipelagic concept it “was now giving priority consideration to the desirability” of declaring an EEZ. Since so many of its neighbours either had declared fisheries or economic zones or expressed their intention to do so, “Indonesia now felt it had to look closely at its own interests”.8 Nevertheless, the government was proceeding cautiously. When Djalal addressed a Law of the Sea Institute conference in Honolulu in mid November he said that Indonesia had not yet made a decision on whether to declare an EEZ but he indicated that it was likely to do so at some stage.9 A few days later Mochtar finally announced that the government would declare an EEZ but added that it was “still waiting for an opportune time for the proclamation”.10 That time was a long way off. As the seventh session approached the government appears to have made no further statements on the matter. Regardless of the timing of its declaration there was now full agreement within the government concerning the method that should be used to delimit boundaries between Indonesia’s EEZ and its neighbours economic and fishing zones. Djalal told the Australian Embassy officials in August, as he had apparently told the Australian delegation during the sixth session, that these boundaries should not necessarily coincide with existing seabed boundaries.11 There seemed to be every reason that this matter would be resolved without a great deal of trouble once Indonesia and Australia had declared their respective zones. One further issue that occupied Indonesian officials following the sixth session was the question of exactly how the government would implement the provisions of the ICNT once they became, as they hoped, enshrined in a convention. The list of tasks was staggering.12 As well as establishing an EEZ at some point and then negotiating EEZ boundaries with neighbouring states the government would, to mention just a few of these tasks, need to propose archipelagic sea lanes, submit this proposal to the IMCO, prepare regulations governing archipelagic sea lanes passage in accordance with the provisions of the ICNT, decide how much jurisdiction it should allocate to provincial administrations in the archipelagic waters adjacent to their shores, draft regulations regarding the exploitation of the resources in the country’s EEZ not only by Indonesians but also by any foreign nationals who might be allowed or entitled to access to these resources, and delimit the outer edge of the continental margin once the conference had agreed on principles defining that limit. Then there was the problem of enforcing all the rules and regulations that the government would be preparing. As it was, the government’s capacity in this respect was limited. In a regime dominated by the army and focused on agricultural development the navy and other maritime enforcement agencies were very weak. Much more had to be done, Djalal argued, “in strengthening [the] law enforcement apparatus at sea”. Adding to the difficulty of enforcement was the tendency of the various elements of this apparatus to operate independently of one another. “Cooperation and more effective coordination between the various enforcement agencies at sea,” Djalal observed with measured understatement, “need

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a lot of improvement and constant attention.” Once the government took the step of declaring an EEZ the deficiencies in the government’s capacity to govern its maritime realm were expected to become even more obvious. Although it had little administrative power in its own right, the body that came closest to coordinating the government’s activities in the maritime realm was Pankorwilnas. Up to this time Pankorwilnas had concentrated mainly on the government’s campaign to gain international recognition of the archipelagic concept but it now began giving much of its attention to the question of implementing the provisions of the text as it was emerging at the conference. It held the First Workshop on the Implementation of Wawasan Nusantara between 27 February and 4 March 1978.13 The 125 participants representing all the departments with an interest in the ICNT undertook a thorough article-by-article review of the text. The workshop identified changes that would have to be made to Indonesian laws to bring them into line with the text. It also proposed steps that the government should take to prevent various provisions from being applied in a way that might undermine Indonesia’s interests. Throughout this review the overriding concern was the protection of Indonesia’s sovereignty. “Considering that archipelagic sea lanes passage in fact limits an archipelagic state’s sovereignty,” read the note on article 53(3), “it is essential to ensure that the application of this right is not misused.” Having studied the ICNT in detail, the Indonesian delegation flew to Geneva for the seventh session starting on 28 March. Although Mochtar was the head of the delegation as usual, he spent little time in Geneva. He had been acting foreign minister since November 1977 when Adam Malik became speaker of the MPR and formally became foreign minister when Suharto announced a new cabinet on 29 March. After discussing relations with China with the visiting Thai foreign minister on 14 April he flew to Geneva, where he spent a week before flying to Dakar to attend the Islamic Conference of Foreign Ministers.14 Except during that week the responsibility for guiding the delegation during the session lay with Hasjim Djalal.

THE SEVENTH, EIGHTH, AND NINTH SESSIONS The Indonesian delegation’s primary objective was to preserve Part IV as it stood in the ICNT except for a couple of “editorial” changes. As it happened, the seventh session unfolded in a way that helped them achieve that goal.15 The session began with a battle over the presidency of the conference. Following a change in government in Sri Lanka Amerasinghe had been removed as the leader of his country’s delegation to the conference. The Latin American delegations argued that under prevailing diplomatic conventions the presidency could only be held by the head of a delegation representing a sovereign state, while the African

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and Asian delegations vigorously insisted that he could hold the presidency as a representative of the secretary-general. In the end the issue was resolved by a ballot which confirmed Amerasinghe’s position as president. Aside from coming close to tearing the conference apart one consequence of this episode was to undermine moves by Amerasinghe and a number of delegations dissatisfied with the power the committee chairmen had exercised since the third session to give him greater authority in the preparation of negotiating texts. Indeed concerns about such a development had fuelled the Latin Americans’ opposition to his continuing as president. While the Latin Americans wanted Aguilar to retain the authority he had enjoyed as chairman of the Second Committee, the conference eventually agreed to rules of procedure that prevented any member of the conference leadership, whether the president or the committee chairmen, from making changes to the negotiating text “unless [they had been] presented to the Plenary and found, from the widespread and substantial support prevailing in Plenary, to offer a substantially improved prospect of a consensus”.16 This agreement served to entrench the provisions of the ICNT, including those which some delegations believed had been incorporated into the text without widespread support. With just four weeks remaining in the session the delegates at last turned their attention to the substantive work of the conference. Much of this work was conducted in seven negotiating groups. None of these dealt with the archipelagic or straits questions but Aguilar also held informal meetings of the Second Committee during which the delegates went through the provisions related to that committee’s work article by article. This was unlikely to result in any major changes in the text, since the chairman “insisted that any changes to the text would have to have overwhelming support in the committee”.17 Despite the formidable obstacles that faced them a number of delegations used this opportunity to propose changes to the articles dealing with straits and archipelagic states. Leading a push to modify the transit passage regime was the Spanish delegation. By this time the Spaniards had decided that they had no choice but to support the transit passage regime but they tried to change it in fundamental ways. Most notably, they proposed the deletion of any reference to aircraft or overflight in the regime. Greece and Morocco also proposed amendments to the regime. According to a Spanish delegate, “the big maritime powers[,] comfortably protected by the uti possidetis of the ICNT, did not even bother to reply” to the “well-founded legal arguments” put forward by the three delegations.18 The one archipelagic state that proposed major changes to the ICNT during the Second Committee’s review was the Philippines, which was deeply dissatisfied with the outcome of the sixth session. On 28 April the Philippines delegation proposed yet again that “The maximum limit…for the breadth of the territorial sea shall not apply to historic waters held by any State as its territorial sea”. They also proposed changes to Part IV along the lines of the proposals they had made during previous sessions. Ships would enjoy the right of innocent

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passage only “through routes customarily used for international navigation”, ships undertaking archipelagic sea lanes passage would be “subject to the laws and regulations of the archipelagic State”, the archipelagic state would only have to “take into account” the IMCO’s recommendations when designating sea lanes, and there would be no provision for aircraft to undertake archipelagic sea lanes passage.19 According to the Philippine representative, José Inglés,20 the proposals to amend various articles in Part IV “received firm support” but his comment that “there was no open opposition” to them indicates that just as they did in relation to the amendments proposed by Spain, Greece, and Morocco the maritime powers relied on silence to express their disapproval. When Aguilar presented a report on the work of the Second Committee to a plenary meeting on 17 May he recommended just three changes to the ICNT. Two of these had been proposed by the Indonesian delegation. One was to make a purely editorial change (to insert a missing “or” in the article in the innocent passage regime defining the meaning of passage). The other was to delete “safe” from article 53(1), thereby bringing that article into line with the agreement Indonesia and the US had reached on 8 July 1977 in relation to revising article 125(1) of the RSNT. The omission of any mention of the Philippine proposals prompted Inglés to declare the following day that his delegation was “unable to endorse the report”. After once more taking the conference through a history of the Philippines’ territorial sea, he again focussed on what he regarded as the iniquity of many of the archipelagic provisions. Why, he asked, should the Philippines be forced to allow submarines to transit while submerged through what it regarded as its internal waters when it did not have to permit this in its territorial sea? Unless those articles in Part IV that the Philippines found objectionable were modified, he said, it would be unable to accept the text “not only because they undermined its unity but also because they violated its sovereignty and territorial integrity”.21 By this point there appeared to be little or no support for the Philippines position. None of the other delegates called for changes to the provisions concerning archipelagic states. But there were still some delegations that believed that those provisions should also apply to archipelagos belonging to continental states. The Greek representative argued that “a fair solution should be found” for such archipelagos, “as they suffered serious injustice”; the Ecuadorean and Spanish representatives expressed their dissatisfaction with the existing text for the same reason.22 They refused to let the issue die. Speaking after all of these interventions, Hasjim Djalal said nothing about archipelagos—at this stage the Indonesians judged that the best way of holding on to what the ICNT gave them was to ignore those wanting to change the text—but instead referred to article 15 of the ICNT. This article raised in a somewhat new form the Indonesians’ ongoing worry that the Philippines might challenge Indonesia’s right to bring waters in the vicinity of Miangas under its sovereignty as it had in Law No.4. The first sentence of the article stipulated that unless two

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states with opposite or adjacent territorial seas agreed otherwise neither of them was entitled to “extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured”. The second sentence added, however, that the article did not apply “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance with this provision”. The Indonesians feared that the Philippines could interpret this caveat as giving it the right to determine the outer boundary of its territorial sea in the vicinity of Miangas without any reference to Law No.4. Djalal therefore argued, without referring specifically to the Philippines, that “the meaning or existence of ‘historical title or other special circumstances’…should be determined objectively by both parties, and not subjectively by one of them”.23 This was as close as he came to defending Indonesia’s archipelagic interests during the plenary meetings that ended this instalment of the conference. The question that consumed the final moments of this instalment was whether to suspend the seventh session until the summer or to conclude the session and hold the next session in 1978. After yet another acrimonious debate the delegates narrowly voted to resume the seventh session in August in New York. The “widespread lack of enthusiasm for further negotiations was”, Hollick notes, “evident in the desultory pace” of the resumed session.24 Since the deliberations of the various negotiating groups had reached very different stages, it was decided not to prepare a new negotiating text at this time. The delegates agreed to hold a further session, the eighth, starting in March 1979. By the middle of 1978 Indonesian officials were busy trying to negotiate continental shelf boundary agreements in two of the areas where Indonesia had not yet concluded such agreements with its neighbours. The first of these was the area between Indonesia and Vietnam. Previously the major stumbling block had been Vietnam’s refusal to take Indonesia’s islands in the South China Sea into account with determining the boundary. The insistence on the part of the Vietnamese to use Borneo instead not only would have the effect of giving Vietnam a much greater area of the seabed but also amounted to a denial of Indonesia’s archipelagic principle. By October 1977, however, the Vietnamese had come around to the Indonesian position and now agreed that Indonesia’s islands in the South China Sea formed the outer edge of Indonesia’s territory.25 This breakthrough enabled negotiations to proceed but meetings in June and August 1978 revealed a new problem. Now the difficulty from the Indonesian point of view was that the Vietnamese insisted that the continental shelf should be divided along the deepest part of the trough lying between Natuna and the coast of Vietnam. Since the trough lies just to the north of Natuna, this method of dividing the seabed would have brought most of the area in question under Vietnam’s jurisdiction.26 The two negotiating teams met again in January 1979 but there was still no agreement.

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Despite the apparent lack of progress Djalal, who had led the Indonesian team during at least two of the meetings, insisted that negotiations were “not stalled and will be resumed”.27 The other area where the Indonesians were trying to negotiate a continental shelf boundary was in the Timor Sea, where they hoped to fill the gap in the seabed boundary negotiated with Australia in 1972. They were, they believed, now in a position to undertake such negotiations, since the Indonesian government had “integrated” East Timor into Indonesia in July 1976. The difficult political question for the Australian government, which had expressed an interest in closing the gap at the time of Peacock’s talks with Mochtar in April 1976, was whether it could enter into negotiations without recognizing Indonesia’s takeover. In January 1978 Peacock announced that the government had given de facto recognition of the incorporation of the territory into Indonesia—“this is a reality with which we must come to terms”—but then wrestled with the question of whether it could begin negotiations without taking the next step of giving de jure recognition of Indonesia’s sovereignty. Finally, in December 1978, the Australian foreign minister announced after meeting with Mochtar that Australia “would give de jure recognition of the Indonesian takeover of East Timor early in 1979 on a date to be fixed, when talks on delineating the seabed boundary between East Timor and Australia began”.28 Those talks (and with them de jure recognition) occurred in February 1979 when Indonesian officials, again led by Djalal, met with their Australian counterparts in Canberra to begin negotiations.29 The most important feature of these negotiations as far as Indonesia’s archipelagic campaign was concerned was that unlike in the earlier discussions the Indonesians felt no pressure to make concessions in the hope of gaining at least implicit recognition of the archipelagic concept. That concept was now firmly in place in the ICNT and fully accepted by Australia. There had also been a trend at UNCLOS III to give less weight to the natural prolongation principle, the basis of the Australian position, in the determination of continental shelf boundaries. For both of these reasons the Indonesians took a much tougher stand than they had in 1972. Mochtar had in fact set the stage by publicly complaining late in 1978 that Indonesia had been “taken to the cleaners” in those earlier negotiations.30 Whatever the validity of that claim, which presumably was intended at least in part as a negotiating tactic, the Indonesians had entered a new phase in their campaign. They could now, as they saw it, proceed on the basis of complete equality with other states in relation to the prevailing law of the sea. Since the meeting in Canberra was described as being “at the technical level” there was no expectation of agreement on this occasion. The three days of talks ended with plans to hold a further meeting later in the year. Maritime boundaries continued to occupy the attention of Indonesian officials over the next few months. At this point the Indonesian government was in no position to negotiate EEZ boundaries with its neighbours, since it had yet to declare an EEZ, but during the eighth session, which met from 19 March to 27 April

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1979, Djalal moved to protect Indonesia’s interests in relation to its neighbours by arguing that the “limit of the exclusive economic zone did not always coincide with that of the continental shelf”.31 Officials also continued to give attention to the problem of closing the gap in the seabed boundary in the Timor Sea. A month after the eighth session Indonesian and Australian officials held another round of talks, this time in Jakarta. While Djalal told reporters afterwards that “the two sides had exhibited a great and sincere desire to have the talks end successfully in mutual agreement”,32 success appeared to be some way off. As in the 1971 and 1972 negotiations the two sides had fundamentally different views about the geological nature of the area and its possible bearing on delimiting a seabed boundary. The difference now was the Indonesians’ determination not to make any concessions that they regarded as blatantly unfair. In April the deliberations at UNCLOS III had ended with a decision to resume the eighth session in July. The resumed session erupted in August when newspapers reported that the US government had (according to the New York Times) “ordered the Navy and Air Force to undertake a policy of deliberately sending ships and planes into or over the disputed waters of nations that claim a territorial limit of more than the three miles accepted by the United States and 22 other nations”.33 A large number of members of the Group of Coastal States took turns attacking this policy. All regarded it as being (as the Ecuadorean representative expressed it) “contrary to peaceful coexistence and…an attack on the sovereignty of States”.34 Several Latin American delegates also used the occasion to argue that there was no generally accepted width for the territorial sea and indeed that coastal states were entitled to territorial seas as wide as 200 miles. Suddenly the emerging consensus on the width of the territorial sea seemed to be under threat. Responding to the barrage, Elliot Richardson argued that the activities being conducted by the US were “fully in keeping with its longstanding policy and international law”, reaffirmed the US’s commitment to the work of the conference, and appealed to delegates “not to be diverted from the common goal by a debate on the very differences that had compelled Governments to enter into negotiations in the first place”.35 While the Soviet representative expressed his delegation’s sympathy for the anger voiced by members of the Group of Coastal States, he said that “it was a matter of some concern” that some states were trying to justify claims to 200-mile territorial seas on the basis of the Territorial Sea Convention of 1958.36 In the end Richardson’s reassurances and the stake most delegations had in resolving the issues before them prevented the episode from derailing the conference. As it happened, the eighth session made progress in resolving a number of difficult issues and was able to produce a revised negotiating text, the ICNT/Revision 1, incorporating a number of changes on which consensus had been reached. The most important of these as far as Indonesia’s archipelagic campaign was concerned was the omission of “safe” from article 53(1) in accordance with the agreement reached in the seventh session. For

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the participating states generally the most important changes concerned the seabed regime. But the US was still far from happy. In an article written after the eighth session Richardson declared that if certain “difficulties” with the regime “cannot be resolved in a manner satisfactory to the United States and other countries whose companies are preparing to engage in seabed mining, none of the other benefits of the treaty can make it acceptable to us”.37 In short, unless certain changes were made the US would not sign the convention. *** Since 1969 the Indonesian government had tried to use maritime boundary agreements as a device for indirectly gaining recognition of Indonesia’s standing as an archipelagic state. Sometime in the early 1970s Foreign Ministry officials, probably in the office of E.H. Wiryosaputro-Laurens, developed a second device that they hoped would serve this end. The idea was to insert into double taxation, aviation, research, and cultural agreements with other countries a clause defining Indonesia’s territory according to Indonesian law.38 Any foreign agreement assenting to such an agreement would thereby recognize the validity of Law No.4. Nugroho Wisnumurti recalls that foreign negotiators “would say ‘This has nothing to do with double taxation!’ We said we had to make it clear what territory was covered by the agreement.” Initially, the Indonesians’ attempts to insert a territorial clause fell short of achieving their aim. The clause inserted into a double taxation agreement with the Netherlands in March 1973 defined Indonesia as comprising “the territory of the Republic of Indonesia and the parts of the seabed and sub-soil under the adjacent seas, over which the Republic of Indonesia has sovereign rights in accordance with international law”.39 There was no mention of Indonesia’s territory as defined by Indonesian law; the wording suggested that Indonesia had “sovereign rights” over those parts of the seabed between its islands that it could claim in accordance with the Continental Shelf Convention but not necessarily over the waters between the islands or even over the seabed in areas such as the Banda Sea where the sea plunged to great depths. Double taxation agreements with Belgium in November 1973 and the UK in March 1974 contained identical formulations.40 The turning point was the sixth session, when all the maritime powers accepted the package agreed to by Indonesia and the US on 8 July 1977. Just two months later a double taxation agreement with West Germany defined Indonesia as comprising “the territory of the Republic of Indonesia as defined in its laws and parts of the continental shelf and adjacent seas, over which the Republic of Indonesia has sovereignty, sovereign rights or other rights in accordance with international law”. The same wording was incorporated into agreements with Canada in January 1979 and France in September 1979. Agreement by agreement, the government was adding more and more braces to the great edifice of recognition the Indonesians were trying to construct.

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The agreements with Canada and France came at a time when such braces appeared more and more necessary. As the conference lurched from one crisis to another Indonesian officials were giving more thought to the question of what the standing of the archipelagic concept would be if the conference failed to produce a convention. They followed two lines of reasoning. The first was to place even more emphasis on the importance of bilateral agreements. At the height of the crisis over the presidency during the seventh session Mochtar told reporters that whatever the outcome of the conference the archipelagic concept would not be affected, “because we have both bilateral and regional approaches”.41 The other line of reasoning, apparently developed after the appearance of the ICNT, was that the archipelagic concept had become part of customary international law. In a presentation to a Law of the Sea Institute conference in October 1979 Djalal, who had recently become the deputy chief of mission at the Indonesian Embassy in Washington, emphasized how important it was for the conference to succeed but raised the question of what would happen to its work if it did fail. He did so, he said, “only to clarify the position of the rules of customary international law” with regard to the provisions in the revised ICNT. His argument was that those provisions that were the result of long negotiations and “seem to have gained general recognition or acceptance by the Conference participants” could indeed be regarded as part of customary international law. “Certainly”, he said, the provisions concerning archipelagic states fell within this category.42 The ultimate goal for Indonesian officials remained recognition of the archipelagic concept in a convention but the implication of both lines of reasoning was that one way or another it would be, and indeed already was, part of international law. *** In his presentation Djalal argued that the concept of an exclusive economic zone had also become part of customary international law. As it happened, the Indonesian government was arriving at the judgement that it could finally declare its own EEZ without in any way undermining its archipelagic campaign. “Noting that…the regime of an exclusive economic zone of 200 nautical miles has been accepted as part of the new international law of the sea”, the government made the long-awaited declaration on 21 March 1980.43 Mochtar told reporters that “the government would implement the declaration right away”. Presumably referring to the multitude of Thai trawlers that were by this time operating in the seas in and around Indonesia, he mentioned that the government was “drafting sanctions for foreign vessels violating the zone”. The government’s own news agency noted, however, that he would not directly respond to a question asking whether the government had the ability to police the zone, which more than doubled the area of sea under Indonesia’s jurisdiction. “We shall see how things

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go,” he said. “Like a couple wanting to get married, they do not think of how to get [a] spoon and fork.”44 Around the time Indonesian officials were finalizing this declaration there was a breakthrough in relation to the Malacca Strait. Although Indonesia tacitly accepted or at least acquiesced to the transit passage regime in 1977 as part of its deal with the US, officials were extremely anxious that some way should be found to make it absolutely clear that Indonesia, Malaysia, and Singapore would have the power under the convention to enforce the regulations endorsed by the IMCO and particularly that they would be able to stop ships unable to maintain a minimum UKC of 3.5 metres from transiting the strait. A Malaysian source reported in March 1980 that “Malaysia, Singapore and Indonesia and the maritime powers, including the United States, the Soviet Union, the United Kingdom and Japan, have agreed in principle to provide for” some sort of special solution “with regard to safety of navigation and protection of [the] marine environment in the strait”.45 That solution, it soon became apparent, was to prepare an “interpretive statement” of the type the US had first floated during the consultations with Malaysia in March 1977. But the statement being discussed in 1980 differed from the one suggested three years earlier in two important ways. First, whereas the original idea had been to interpret certain provisions in the transit passage regime as giving the three states the authority they wanted the plan now was to achieve that goal by interpreting article 233 (as article 234 of the ICNT, the article giving states bordering straits the power to enforce regulations related to navigational safety and the environment, had been renumbered during the 1979 revision).46 Second, whereas the original idea had been to provide an interpretation that applied generally to straits used for international navigation the intention now was that the interpretation would apply only to the Straits of Malacca and Singapore, thereby overcoming the need to involve states that were not frequent users of the strait. The interested parties appear to have met during the ninth session, which was already underway at the time of the Malaysian report, and finally reached agreement on the contents of the statement sometime during the resumed ninth session, which began on 28 July. There was still some work to do. In particular, the states interested in this issue had to decide when and how to release the statement. But the meetings had made a big step towards making the transit passage regime far more acceptable to the Indonesians and Malaysians. In fact, the Indonesian delegation was by the end of the resumed ninth session trying to ensure that the provisions concerning both archipelagic states and straits used for international navigation remained exactly as they were. On 25 August 1980 Djalal told a plenary meeting that “His delegation was happy to note that a consensus seemed to have been reached on draft articles relating to archipelagic States and straits used for international navigation. For more than three years those two legal regimes and many other issues debated in the Second and Third Committees had been considered as settled by the Conference.” For this reason,

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he added, the Indonesian delegation “fully supported” an appeal by Amerasinghe not to reopen issues “that had been considered settled”.47 Similarly, Satya Nandan referred to the “entrenchment” of the archipelagic state provisions in the negotiating text. He also used the occasion to announce that his government had already enacted legislation in line with those provisions.48 During the ninth and resumed ninth sessions there remained two sources of opposition to the way the ICNT dealt with archipelagos. First, a small number of states still wanted to have archipelagos belonging to continental states treated the same way as those belonging to states made up entirely of islands. The Ecuadorean representative told the conference that his delegation “saw no valid legal reason to discriminate against archipelagos forming part of the territory of a State, whereas a special regime was being set up for archipelagic States. Identical geographical formations must be accorded identical treatment.” As on earlier occasions the Greek representative came to his support.49 Second, although now isolated from all the other archipelagic states, the Filipinos maintained their strident opposition to many of the provisions in Part IV. The day after Djalal spoke Abad Santos told the conference that the archipelagic sea lanes passage regime “nullified the original intent [of the archipelagic provisions] regarding the security and integrity of the archipelago”. “Even more difficult for his country,” he continued, “was the imposition of the right of overflight over the archipelagic sea lanes, a right not enjoyed over the territorial sea.” One of the debates taking place in the conference at this time concerned whether the convention should include a reservation clause. The Filipinos were strong advocates of such a clause, since it would enable them to sign the convention without having to accept those provisions that they found intolerable. Santos came close to saying that unless it included a reservation clause the Philippines would not sign the convention.50 While alone in fighting the passage provisions in Part IV, the Philippines was but one of many delegations unhappy with what they regarded as a serious deficiency in the innocent passage regime. During the ninth session the Philippines had joined Argentina, China, Ecuador, Madagascar, Pakistan, and Peru in proposing that article 21 (“Laws and regulations of the coastal State relating to innocent passage”) be amended to give coastal states the right to require foreign warships to give notification or obtain authorization before passing through that state’s territorial sea under the innocent passage regime. Because the proposal was not incorporated into the second revision of the ICNT prepared at the end of the session a large number of states pressed the issue with renewed vigour during the resumed session, first during informal meetings of the Second Committee and then in the plenary meetings at the end of the session. The Egyptian representative, for example, noted that “his delegation considered that prior notification was essential, as the sovereignty and security of the coastal States were involved and they must be able to take the necessary measures in the event of violation of the applicable rules”.51 Altogether about twenty-two representatives spoke in favour

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of amending the text in line with the proposal sponsored by the seven states. A number of maritime powers and their allies made it very clear they would find any change unacceptable and warned that any change would destroy the balance between competing interests that had been so laboriously crafted up to that point.52 Although the Indonesian government still expected foreign warships to provide notification before passing through Indonesian waters,53 the Indonesian delegation remained silent on this issue. This was almost certainly because the Indonesians could see its potential to wreck the package in which they now had such a large stake. Despite the lack of consensus on a few crucially important issues the conference made considerable progress during the resumed ninth session. It seemed to have come close to final agreement on the question of how to delimit the outer edge of the continental margin. And “despite—or perhaps because of—previous setbacks and the passage of U.S. mining legislation” it even resolved some of the most contentious issues associated with mining the deep seabed.54 There was a gathering momentum to finalize the convention in the near future. A few weeks after the resumed session the conference leadership released what it called a “Draft Convention on the Law of the Sea (Informal Text)”. Aside from some drafting changes this text left the articles dealing with archipelagic states and straits used for international navigation exactly as they were. It did not give continental states such as Ecuador the right to apply the archipelagic provisions to any group of islands that conformed to the definition of an archipelago in article 46(b). It included no reservation clause such as the Filipinos wanted. Nor was there any reference to the right of coastal states to require foreign warships to give notification or obtain authorization before passing through their territorial seas. In a memorandum accompanying the text Amerasinghe expressed “the hope that this revision will be regarded as bringing the Conference to the final stage of its deliberations and negotiations”. It would, he suggested, probably be impossible to “satisfy all participants and reconcile such a bewildering diversity of interests…. The only feasible compromise is to accept something that falls short of the perfect in order to achieve the desirable.”55

NEIGHBOURS Following the resumed ninth session Indonesian officials returned to the business of negotiating with their neighbours. Now that Indonesia had declared an EEZ they were anxious to negotiate a fisheries enforcement line between Indonesia’s EEZ and the Australian Fisheries Zone (AFZ) that had come into force in November 1979. In October 1979 the Australian government announced that “pending conclusion of delimitation negotiations” with neighbouring countries “median lines in accord with Australia’s maximum legal entitlement should be used for the interim

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delimitation of the AFZ in areas between Australia and its neighbours”.56 There was therefore no suggestion by Australia that the enforcement line should follow the existing continental shelf boundaries. Both governments believed that the boundary should follow the median line. But when Indonesian and Australian negotiators met in November 1980 they had very different views about how to draw that line in the western part of the Timor Sea. This dispute concerned how much “effect” to give to Ashmore Reef and other features belonging to Australia in that area (see figure 8.2). The Australians wanted to give “full effect” to these features when drawing the line, thereby placing the line much closer to Indonesia’s islands than to the Australian mainland. For their part, the Indonesians argued that Australia’s reefs and islets, all of which were uninhabited, should be ignored and that the line should be drawn between, on one side, Indonesia’s islands and, on the other, the Australian mainland, thus placing the line in the middle of the Timor Sea. The total area in dispute was 52,120 square nautical miles, an area greater than that of Java. After four days of discussions there was no agreement.57 The other neighbour very much on the minds of Indonesian officials at this time was Malaysia. Aside from finalizing the “interpretative statement” regarding article 233 the only unfinished business in Indonesia’s archipelagic campaign was to conclude a treaty with Malaysia in relation to Indonesia’s archipelagic waters lying between West and East Malaysia. Such a treaty was the most important element in the “bilateral and regional approaches” that Mochtar referred to during the crisis over the presidency of the conference in April 1978. Moreover, there had long been an understanding that acceptance of the archipelagic principle at the conference depended at least partly on satisfying Malaysia’s interests in Indonesia’s archipelagic waters. Sometime in 1980, apparently some months after the leader of Malaysia’s delegation to the ninth session spoke publicly of the need to conclude a treaty guaranteeing Malaysia’s rights in those waters,58 the two governments agreed that the time had come to begin negotiations. The work of transforming the 1976 MoU into a treaty finally began when officials representing Indonesia and Malaysia met in Kuala Lumpur in February 1981 to discuss a draft treaty prepared by Malaysia.59

THE TENTH AND RESUMED TENTH SESSIONS The ninth session had ended in an atmosphere of optimism. Many delegates had expected that the conference would be able to conclude negotiations at the tenth session, which was to begin in March 1981, and then make plans to hold a final session for signing the convention. As it happened, two events shattered this outlook.60 The first was the sudden death of H.S. Amerasinghe on 4 December 1980. The second was an announcement by the new Reagan administration, which was fundamentally opposed to aspects of the seabed mining regime that Richardson had helped to craft, just before the opening of the session that it was undertaking a

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thorough review of the US’s negotiating position. The conference was able to deal with this first of these relatively easily. A few days of intense negotiations resulted in the election by consensus of Ambassador Tommy Koh of Singapore as president. The second shock, in contrast, threatened to destroy the conference. A large number of delegations regarded the review as a betrayal of the good faith in which they had negotiated with the US for the previous decade. Their dismay deepened when the US representative announced during discussions about resuming the tenth session in the summer in the expectation of concluding negotiations that the US was unlikely to have concluded its review by that time and that it would prefer to hold the next session in 1982. If, however, there was going be a resumed session in 1981 then, he said, the US would prefer to see it used for “consultations” rather than negotiation. These statements stunned and enraged many delegates, including Hasjim Djalal, who along with other members of the Indonesian delegation had worked so hard to accommodate the US. He was, he told other delegates, “deeply concerned at the developments which had taken place at the current session and…astonished by the explanation given by the representative of the United States with regard to the convening of the next session”. He reminded delegates that many developing countries including Indonesia would find a session devoted purely to consultations “financially embarrassing”, warned of the precedent acceptance of the US request would set, and said that he could see no reason why the US could not conclude its review by the summer.61 In the end, the conference decided to go ahead with plans to resume the session in the summer to (as Miles puts it) “keep the momentum going”. In the toxic atmosphere that enveloped the tenth session those states unhappy with article 21 renewed their efforts to give coastal states the right to require warships to give notification or obtain authorization before passing through their territorial seas. As the US report on the session acknowledged, there were many coastal states “ready and willing to do battle on military-related issues should the text be reopened”.62 The four informal meetings of the Second Committee—“held together, once again, by the strong and able leadership of Amb. Aguilar”, the same report noted—devoted most of their time to this issue and many delegates (though, again, no member of the Indonesian delegation) expressed their dissatisfaction with the existing text during the plenary meetings at the end of the session. The work of more than a decade seemed to be on the verge of unravelling. In the midst of these events the Indonesian, Malaysian, and Singaporean delegations nevertheless reached all but final agreement with the maritime powers over the wording of the “interpretative statement”.63 The “statement”, as it was now called at the request of the three coastal states, presumably to give it greater authority, declared that any violation of the UKC approved by the IMCO “shall be deemed…to be a violation within the meaning of Article 233”, that the three states “may take appropriate enforcement measures”, that these included “preventing a vessel violating the required UKC from proceeding”, and

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that such an action would not constitute “denying, hampering, impairing or suspending the right of transit passage” set out in the articles dealing with straits used for international navigation. The tricky questions faced by the parties to this statement were (as a Pankorwilnas report put it) “how to present and announce the statement in the conference and how to bring it into being [menjadikannya] as a document that legally binds the parties without explicitly referring to it as an agreement”. They agreed that the solution would be for the leader of the Malaysian delegation to write a letter to the president calling his attention to the statement and for the leaders of all the other delegations involved in the discussions to write separate notes to the president simply confirming the contents of the statement and the letter. The only remaining question was when to submit these documents. The US delegation asked that no further steps be taken until all the interested delegations had given their approval. The resumed tenth session during the summer of 1981 was marked by “considerable frustration” because the ongoing US review made it so difficult to conduct meaningful negotiations.64 Nevertheless, the session made significant progress towards wrapping up a convention. There was finally a consensus on the delimitation of maritime boundaries. The Drafting Committee made a huge step towards bringing the six versions of the text (Arabic, Chinese, English, French, Russian, and Spanish) into harmony with one another. There was agreement on some aspects of the seabed mining regime. And, in large part because of the anger the G77 felt towards the US, there was a concerted push to formalize the text and finalize a schedule for completing the conference. In the end the conference formalized the text as the Draft Convention on the Law of the Sea, agreed to hold a session in March-April 1982 during which it would adopt the convention (by consensus if at all possible), and planned to hold one last session in Caracas late in 1982 for signing the convention. The convention, and with it international recognition of the archipelagic concept, appeared to be on track, with or without the US.

NEIGHBOURS (CONTINUED) Over the course of 1981 Indonesian officials continued to negotiate with Malaysia over a treaty regarding Malaysia’s rights in Indonesia’s archipelagic waters lying between West and East Malaysia and with Australia over a fisheries enforcement line. The leader of the Indonesian delegation in both sets of negotiations was Zahar Arifin, now the director of treaty and legal affairs (the position previously held by Djalal) in the Department of Foreign Affairs. In June 1981 he led the delegation in a second round of talks with Malaysia, this time in Jakarta, during which the Indonesians presented a counter draft of the treaty for discussion and it appears he led the delegation during a third

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round not long after the resumed tenth session. Then in October he led the delegation for a further round of talks with Australian officials in Canberra. As it happened, the two sides agreed on a memorandum of understanding on a provisional fisheries enforcement line within just three days.65 The line followed the median line between Indonesia’s islands and the Australian mainland except in the western part of the Timor Sea, where the line made a loop around Ashmore Reef, thereby giving Indonesia 70 percent of the area the two countries had disputed. The speed with which the delegations reached agreement was largely due to the provisional nature of the line. The MoU made it clear that the agreement was without prejudice to future boundary negotiations. This was particularly important to the Australians since they did not want the median line to be used as the basis for delimiting the continental shelf boundary between the two countries in the waters south of East Timor. Also contributing to a quick resolution of the discussions was the fact that “traditional” Indonesian fishermen already had certain rights in the waters around Ashmore and other reefs under a memorandum of understanding signed in 1974. The main feature of the fisheries line agreed on in Canberra was that it coincided with the continental shelf boundary in the eastern part of the Arafura Sea (where that boundary had been drawn using the median line in 1971) but otherwise ran well to the south of the continental shelf boundary. Speaking to an audience in Australia in 2008, Hasjim Djalal summarized this arrangement with these words: “The fish are ours, the oil is yours!”66 The agreement was to come into effect on 1 February 1982. In December the Indonesian and Malaysian governments moved to finalize the treaty that they had been negotiating since February by holding one more meeting, this time in Kuala Lumpur. On this occasion the Indonesian delegation consisted of just two people, the deputy leader, Nugroho Wisnumurti, whom Mochtar had entrusted with the task of wrapping up the remaining issues, and Alimudin Lubis, the head of the political section in the Indonesian Embassy in Kuala Lumpur, while Malaysia was represented by a large delegation led by the country’s solicitor-general, Zakaria Mohamed Yatim. Their discussions began on a Saturday morning and continued without a break until the two sides reached agreement early Monday morning, an hour before Nugroho had to board his flight back to Jakarta.67 There is no public record of exactly what the sticking points were, but the general nature of the discussion is clear. On the one hand, the Malaysians wanted as great a range of rights as possible in the waters between the two parts of their country while, on the other, the Indonesians did not want to give Malaysia so much that Indonesia’s sovereignty over these waters would be rendered meaningless. The text that they agreed on delicately balanced these competing objectives.68 The heart of the document was article 2. On the one hand, Malaysia declared its recognition of Indonesia as an archipelagic state. More specifically, it recognized

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the republic’s sovereignty over its territorial sea and archipelagic waters, the seabed and resources within these areas, and the airspace above them. On the other, Indonesia, using wording that was now in the draft convention, declared that it would “continue to respect existing rights and other legitimate interests which Malaysia has traditionally exercised” in Indonesia’s territorial sea and archipelagic waters lying between East and West Malaysia and in the airspace above these areas. The remainder of the text set out these rights and interests in detail. These were extensive but in all cases were accompanied by provisions that emphasized Indonesia’s sovereignty. Much of the document dealt with the right of access and communication enjoyed by Malaysian ships and aircraft. Using the same words that applied to archipelagic sea lanes passage in the draft convention, the document gave Malaysian ships “the right of continuous, expeditious and unobstructed navigation” through two corridors. Again following the draft convention, and conforming to the way Indonesians conceptualized sea lanes, these corridors were defined by two axis lines, as shown in figure 17.1. However, whereas the draft convention allowed ships to deviate up to 25 miles from an axis line, this document limited that distance to 10 miles. Naval ships had the right to conduct manoeuvres when passing through these corridors but were not allowed to fire weapons. Whereas in the case of ships “the right of continuous, expeditious and unobstructed navigation” applied only to the two narrow corridors, “the right of continuous, expeditious and unobstructed overflight” applied “through the airspace above the territorial sea, archipelagic waters and the territory of the Republic Indonesia” lying between the two parts of Malaysia. Malaysian state aircraft enjoyed the right to conduct manoeuvres through this same airspace as long as no weapons were fired. The document did not explicitly prohibit Malaysia from inviting other states to participate in military manoeuvres but provisions stating that the two governments “shall hold consultations with the view of concluding such arrangements as may be appropriate” regarding naval and aerial manoeuvres made it clear that such participation would require Indonesia’s consent.69 The document dealt with a great range of other activities in addition to passage. Indonesia agreed to allow Malaysia to “continue the exercise of [the] traditional fishing right of Malaysian traditional fishermen”. This provision was, it would appear, a rather hollow one from the Malaysian point of view, not only because this right only applied to “traditional fishermen” but also because these fishermen were only allowed to operate in a fairly small area referred to as “the Fishing Area” (see figure 17.1). In respect to fisheries in particular the balance was very much in Indonesia’s favour. Other provisions in the document, however, gave Malaysia the right to lay and maintain submarine cables and pipelines in the waters lying between the two parts of the country and established the principle that the two governments would cooperate on the maintenance of law and order, the conduct of search and rescue operations, and the conduct of marine

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scientific research in these same waters. These were explicit acknowledgements of Malaysia’s interests in these waters. One further provision was crucial to the understanding that the two governments had reached. Article 3(2) declared that “the right of access and communication exercisable by Malaysia…shall not be suspended or hampered”. There was no suggestion elsewhere in the document that this right could be suspended in certain circumstances. Here at last was the guarantee the Malaysians had been looking for since 1974. From the Indonesian point of view this document had special importance. The many maritime boundary agreements that Indonesia had previously concluded with its neighbours had, at least as Indonesians interpreted them, indirectly recognized Indonesia’s archipelagic status, as had the various double taxation agreements Indonesia had entered into since the sixth session. This document, in contrast, was the first bilateral agreement that explicitly recognized Indonesia as an archipelagic state and acknowledged its sovereignty within its system of straight baselines and the territorial sea measured out from those baselines.70 In addition,

Figure 17.1 Access and fishing rights of Malaysia in the territorial sea and archipelagic waters of Indonesia lying between East and West Malaysia according to the treaty of February 1982

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of course, the agreement removed a longstanding irritant in relations between Indonesia and Malaysia and, most important of all, banished any doubts other states might have about the readiness of Indonesia’s neighbours to accept Indonesia as an archipelagic state. Indonesian negotiators had, as Nugroho put it, defined Malaysia’s rights and legitimate interests in the waters between the two parts of Malaysia “in such a way that they would not undermine the archipelagic state regime and the legitimate interests of Indonesia”.71 The Indonesian government was in every respect pleased with the result. Amidst great fanfare Mochtar and his Malaysian counterpart, Ghazali Shafie, signed the treaty in Jakarta on 25 February 1982. The ceremony took place in Gedung Pancasila, where the Djuanda cabinet had issued the declaration establishing Indonesia as an archipelagic state in December 1957. Among those attending were Nugroho, who had recently been given an overseas posting but remained in Jakarta until the ceremony at Mochtar’s request, and Sudarmono, whom Mochtar had appointed secretary-general of the Department of Foreign Affairs. In the speeches marking the occasion Mochtar spoke of the importance of the treaty as part of the work of UNCLOS III. For his part, Ghazali spoke of how the waters lying between Malaysia and Indonesia, in the Malacca Strait as well as the South China Sea, did not divide the two countries but instead connected peoples sharing a common heritage and sentiment. “There is nothing that can separate us,” he said. “Although there have been occasions when we have passed like ships in the night, we are united like the leaves of a water lettuce.”72 On the same occasion the leaders of the two delegations signed a “record of discussion”. This confidential document did not merely record the deliberations that had taken place but also elaborated on the provisions in the treaty. Although article 3(2) of the treaty appeared to deny Indonesia the right of temporarily suspending passage through the two corridors, the record of discussion (as summarized by Hamzah) noted that “Malaysia recognizes and respects the right of Indonesia to suspend temporarily the exercise of the right of access and communication of Malaysian ships through the designated corridors”. Here was yet another recognition of Indonesia’s sovereignty. To reassure Malaysia, however, the record of discussion added that “such suspension can take place only after consultations” between the two governments.73 The record of discussion thus went some way towards giving Indonesia a right that was not in the treaty but tempered that right by requiring the government to consult with Malaysia before exercising it. In this way the two governments achieved a very delicate balance. The Indonesians had gone as far as they possibly could to accommodate the Malaysians without going so far that they believed they had compromised Indonesia’s sovereignty. ***

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Pursuing as they were their campaign on several fronts at the same time, Indonesian officials continued to have the territorial clause inserted into various double taxation agreements whenever they could. The clause was now becoming a routine feature of such agreements, whatever position the other state had once taken on the archipelagic issue. It was inserted into agreements with a neighbour that at one time had been at best wary of the claim, Thailand, in March 1981; a fellow archipelagic state, the Philippines, in June 1981; and a maritime state that had at one time opposed the claim outright, Japan, a week after the signing of the treaty with Malaysia.74 The campaign had come a long way.

THE ELEVENTH SESSION The eleventh session, which began on 8 March 1982, proved to be even more tumultuous than those that had come before.75 In January President Reagan had announced that “while most provisions of the draft convention”, including, so his statement implied, those related to archipelagos and straits, “are acceptable and consistent with U.S. interests, some major elements of the deep seabed mining regime are not acceptable”. He then listed six objectives that the regime would have to meet before it would be acceptable to the US.76 When, as the session got underway, the US delegation provided a more elaborate version of Reagan’s statement, the G77 demanded that it provide specific amendments. This demand led the delegation to prepare a book of amendments regarding the seabed mining regime—the “Green Book”—that stunned members of the G77 and greatly discomforted allies of the US. In response, the Australian, New Zealand, Icelandic, Swedish, and seven other delegations—the Group of 11—tried to fashion a compromise that would satisfy the US and the conference as a whole. During a plenary meeting held as these negotiations were taking place Djalal referred to the importance Indonesia attached to concluding “a comprehensive convention…by the end of the current session” and stressed how the draft convention was “the result of long years of negotiation and represented compromises that balanced all the conflicting interests of different States”.77 A couple of weeks later Nugroho noted “a positive statement” by the US but suggested that amendments cosponsored by the US, France, West Germany, Belgium, Italy, and the UK had not improved the prospect for consensus.78 Amidst the drama surrounding negotiations over the seabed regime there was a flurry of proposals to amend other parts of the text. A large number of states made a further attempt to amend article 21 to allow a coastal state to require prior notification or authorization of warships. Pursuing an alternative method of achieving the same goal, they then sponsored an amendment to add “security” as one of the subjects on which a coastal state would be entitled to enact legislation in relation to ships undertaking innocent passage. Spain called for amendments to the transit passage regime and article 233. And Greece proposed a

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new article allowing continental states to apply the provisions of Part IV to groups of islands that formed part of their territories but promptly withdrew it “for the purpose of facilitating consensus”.79 Somehow the conference leadership prevented the session from spinning out of control. When, on 26 April, two days before the scheduled end of the session, the US submitted compromise amendments on the seabed and then (on instructions from the White House) promptly withdrew them President Koh and the G77 (as Miles puts it) “had had enough”. The G11 tried to extend the session by a week but by this time even the European allies of the US had had enough and Koh decided that the session should end on schedule. At that point there were 37 amendments before the conference. The sponsors of 34 of them, including those sponsored by the states trying to amend article 21, acquiesced to Koh’s appeal to withdraw them in the interests of maintaining the delicate balance within the existing text. The conference then defeated the remaining three proposals, including two regarding straits sponsored by Spain. Up to this time the conference leadership and most of the delegations had retained the hope that the convention could be adopted by consensus but the US insisted on a recorded vote. Moments before the vote was to take place the Ecuadorean representative announced that his delegation would not be taking part in the vote. In the vote that followed 130 delegations, including Indonesia and all the other archipelagic states, voted for the resolution to adopt the convention. Four—the US, Israel, Turkey, and Venezuela—voted against it. And 17, including the UK, Spain, the USSR, and Thailand, abstained. Koh then declared the convention adopted. Speaking immediately after the vote, the Ecuadorean representative explained that his delegation had been unable to take part because it “unswervingly defended the rights which his country possessed and exercised both in the continental part of its 200-mile territorial sea and in the Galapagos archipelago”. Yet again he called attention to what Ecuador regarded as the fundamental injustice of treating archipelagos such as Galapagos differently from those belonging to archipelagic states.80 During the hectic aftermath of the vote the Malaysian representative, Zakaria Mohamed Yatim, seized the opportunity to put the “statement” concerning article 233 before the conference. The previous day he had submitted to Koh both the statement and the letter that Malaysia, Indonesia, and Singapore and various maritime states had agreed to during the tenth session. At the same time Mochtar, as leader of the Indonesian delegation, Koh, as leader of the Singaporean delegation, and the leaders of the Australian, French, Japanese, UK, West German, and US delegations submitted notes confirming the contents of the statement and letter.81 In this way the three coastal state delegations had come as close as they possibly could to associating the statement with the convention without actually making it part of that document. In June Mochtar was to describe the statement as “an official affirmation [pengukuhan resmi]” of the traffic separation scheme.82 The

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long campaign to overcome what the Indonesians and Malaysians in particular had regarded as a major deficiency in the transit passage regime, and therefore in the text as a whole, was now over. *** The adoption of the convention was for the Indonesians a momentous event. With international recognition of the archipelagic state, Mochtar wrote shortly after the eleventh session, “there is now much less possibility of either physical or legal challenge to Wawasan Nusantara”.83 Connecting the achievement in the conference even more firmly with the ideology of Wawasan Nusantara, he wrote on another occasion that “with international recognition the land and sea of Nusantara as the physical form of Wawasan Nusantara will no longer experience interference or undermining”.84 At long last the territorial unity of the Indonesian nation had been recognized in an international convention. There was, however, still some way to go before the convention adopted in April became fully incorporated into international law. The conference held a brief meeting in September 1982 at which the delegates approved changes made by the drafting committee and adopted the Final Act (a formal summary of the proceedings of the conference). Because Venezuela had rejected the convention the delegates had to reconsider their plan to hold the signing session in Caracas. It was agreed to hold it in Jamaica in December. The Jamaican government in turn made plans to hold the ceremony at Montego Bay.

MONTEGO BAY The signing session beginning on 6 December 1982 gave delegations that had taken part in the conference—whether they planned to sign the convention or not—the opportunity to make statements before the signing ceremony. After declaring that the convention formed “an integral whole” and that for this reason no state could claim rights under the convention without accepting the duties attached to it, Tommy Koh appealed to delegates not to make statements or submit declarations that in any way purported to “exclude or modify the legal effect of the provisions” of the convention. “Let no nation put asunder this landmark achievement of the international community.”85 Speaking later the same day, Mochtar, leading the Indonesian delegation for the final time, had no intention of putting it asunder. For him as well as for Djalal (now the vice chairman), Nugroho Wisnumurti, Abdullah Kamil, Adi Sumardiman, and the seven other members of the delegation this was Indonesia’s moment of triumph.86 As Mochtar saw it, the incorporation (“with some modifications”) of the Indonesian conception of an archipelagic state into the convention completed

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the campaign begun twenty-five years earlier with the declaration of 13 December 1957. But it also corrected a grave injustice that had taken place when the European powers, using Grotius’s idea of the freedom of the seas as their justification, “transformed” the waters and passage routes between Indonesia’s islands “into avenues for conquest” and brought Indonesia under colonial rule “for centuries”. Since independence in 1945, Mochtar said, “it has become an extremely important task of my country to restore its unity by returning the waters between the islands to their traditional unifying role”.87 Indonesia was whole again, not only in Indonesian but also in international law. This was a moment of great satisfaction for other archipelagic states as well. Expressing the same conception of history that permeated Mochtar’s statement, Satya Nandan noted that “We in Fiji have always looked upon the seas between our islands as uniting our nation rather than dividing it”.88 Though he regretted that the convention had failed to adopt amendments proposed by the Philippines, Arturo Tolentino declared that this government was satisfied with the convention, mainly because, he explained, it treated an archipelago as an “integrated unit” and because it recognized the sovereignty an archipelagic state had over its archipelagic waters, seabed, and airspace. He noted too that the huge EEZ his country had gained as a result of the convention “almost compensates” for the failure of the convention to recognize the Philippines historic territorial sea.89 And the leader of the Bahamas’ delegation, Paul Adderley, thanked the conference “for its most favourable consideration of the problem of mid-ocean archipelagos”.90 The success of Indonesia’s strategy of trying to gain the support of neighbouring states was demonstrated by the statements of two of Indonesia’s neighbours, Australia and Malaysia. Reviewing the circumstances that led to the conference, Keith Brennan referred to the belief archipelagic states had had that “the integrity of their nations was jeopardized by the doctrine that the waters surrounding their islands were high seas” and listed “the recognition that archipelagic States have rights of sovereignty over the waters inside the archipelago” as one of the twelve historic achievements of the conference.91 In his statement Ghazali Shafie highlighted the recognition the convention had given archipelagic states, called attention to the provision ensuring that if the archipelagic waters of an archipelagic state lay between two parts of an immediately adjacent state that state would continue to enjoy the rights it had traditionally enjoyed, and expressed his great satisfaction with the treaty Malaysia had concluded with Indonesia earlier in the year. He also spoke of the importance of the “common understanding” Malaysia and its neighbours Indonesia and Singapore had reached with major user states “on measures that coastal States may adopt in accordance with relevant provisions of the Convention”.92 For Indonesian officials Ghazali’s statement was the culmination of thirteen years of hard negotiations beginning not long after the end of Confrontation.

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But not everyone was happy with the way the convention treated archipelagos. Even at this stage in the conference India, Spain, and Ecuador expressed their disappointment that the convention had failed to treat archipelagos belonging to continental states the same as those belonging to states made up entirely of islands. According to the Indian representative the distinction between the two types of archipelagos was “neither logical nor justified”, the Spanish representative regarded it as “unfair”, and the leader of Ecuador’s delegation complained that the convention failed to take account of the special circumstances of the Galapagos Islands. Despite its disappointment India would nevertheless sign the convention. Because the government that had come into power in October had only just begun an assessment of the convention Spain, which also remained unhappy about aspects of the transit passage regime, had not yet decided whether to sign. Holding fast to the position it had taken all along both on archipelagos and the width of the territorial sea, Ecuador announced that it would not sign the convention.93 With this ended the push that at one point looked as if it could derail Indonesia’s archipelagic campaign. Hovering over the signing session was the fact that the US would not be a signatory. For the representatives of many other countries the decision not to sign the convention was at the very least an act of bad faith. They had made what they regarded as substantial concessions in order to accommodate the US and now the US would not even be a party to the convention. Highlighting as Koh had done the concept of the convention as a grand package, many delegates including Mochtar and Nandan were highly critical of the US for believing it could accept those parts it agreed with but reject those it found unacceptable. Their view was that even those provisions that had previously been part of customary international law had been preserved only because those states that had wanted to remove or radically modify them had been given various benefits in exchange. But these arguments made little impression on the US delegation. In his statement to the session Thomas Clingan argued that the provisions dealing with navigation and overflight as well as many other provisions reflected “prevailing international practice” and therefore, he implied, were available to all states whether or not they were signatories.94 On the morning of the final day of the conference, 10 December, Koh opened the convention for signature. With Djalal and Abdullah Kamil standing behind him Mochtar took his turn to sign the convention (see photograph 17.1). Altogether the representatives of 117 states and two territories signed. Among the signatories were all of Indonesia’s neighbours, including Thailand. When the plenary resumed after an adjournment Koh announced that Fiji had already submitted its ratification of the convention. The session ended with statements by the Jamaican foreign minister, UN Secretary-General Javier Pérez de Cuéllar, and finally Tommy Koh. Commenting on themes emerging from the statements given over the previous few days, Koh rejected the argument that except for the seabed regime the convention “codifies customary law or reflects existing international practice” as “factually

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incorrect and legally insupportable. The regime of transit passage through straits…and the regime of archipelagic sea lanes passage are only two examples of the many new concepts in the Convention.” He appealed to the US, as many other delegates had in their statements, to reconsider its decision not to be a party to the convention. Then, after issuing an invitation to those delegates such as Mochtar who had taken part in all three conferences “to gather for a group photograph for sentimental reasons”, he declared the Third United Nations Conference on the Law of the Sea closed.95 *** On his return to Jakarta Mochtar told reporters, much as he had said at the conference, that the special significance of the convention for Indonesians was that it gave formal recognition of the archipelagic state principle that Indonesia had fought for in international forums for twenty-five years.96 Actually, the convention had not given Indonesia everything that it had fought for. Nor for that matter could the convention be regarded as fully incorporated into international law until sixty states had ratified it. But the archipelagic state principle was finally part of an international convention even if it did not take precisely the same form Indonesia

Photograph 17.1 Mochtar Kusumaatmadja signing the convention, Montego Bay, 10 December 1982. Standing directly behind Mochtar are Abdullah Kamil (left) and Hasjim Djalal (right).

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had originally proclaimed. And even if a long road might lie ahead before the convention came into force those 119 signatures already gave it great weight. Even the most important non-signatory, the United States, had in Reagan’s statement earlier in the year and in Clingan’s characterization of the navigation and overflight provisions in the convention as part of customary international law implicitly accepted the archipelagic state regime as it stood in the convention. Indonesia was now universally recognized as an archipelagic state. Commenting on other aspects of the convention, Mochtar noted that it had also confirmed the validity of Indonesia’s EEZ. For many years Indonesian delegations had, along with its other archipelagic counterparts, avoided campaigning for an economic zone. They had made it clear that they would be satisfied with nothing less than sovereignty over the waters between the islands and avoided giving the impression that Indonesia was also eager to have an exclusive economic zone extending out from its system of straight baselines. Now Indonesia not only was recognized as an archipelagic state but also had one of the biggest EEZs in the world. “So,” said Mochtar, referring to both of these aspects of the convention, “we have reason to be pleased with the signing of this convention”.

CHAPTER 18

Reflections on the diplomatic campaign diplomatic the on Reflections campaign

The most conspicuous feature of the campaign the Indonesian government waged to gain international recognition of the principles in Law No.4 of 1960 was the single-mindedness with which Indonesian diplomats pursued their goal. In August 1976, when there seemed little prospect of a quick resolution of the problems facing the law of the sea conference, Ambassador Newsom complained in a message to Washington of the Indonesian government’s “tendency is to concentrate on [the] archipelago and related issues and follow [the] path of least resistance to [the] G-77 on all others.”1 This comment was not entirely accurate. As it happened, the Indonesians generally agreed with the G77’s position on the issue Newsom was most concerned about at the time, namely, the seabed regime.2 But their primary focus was always on the archipelagic issue and the associated issue of straits. Even when they took an active interest in other issues, as they in fact did on occasion, they did so at least in part as a way of furthering their archipelagic objectives. The best indication of the extent to which they maintained their focus on those objectives was the care they took not to campaign actively for an economic zone even though Indonesia stood to gain so much from one. Underpinning this single-mindedness was a vision of Indonesia as forming a single territorial unity. Indonesian officials did not see this unity as a construction of the Djuanda cabinet. Instead they regarded Djuanda’s declaration, as did the declaration itself, as enunciating a unity that had existed in some form for centuries. They therefore saw themselves as instruments for putting back into place a unity that Western imperialism had come close to destroying and for protecting a unity that separatist groups could undermine if the government did not have full authority over all of Indonesia’s territory, its waters as well as its land. As historians we might question the basis of some of these beliefs but such was the power of the idea of Indonesia that by the time the archipelagic campaign began in earnest in 1969 there was in the minds of the archipelagic campaigners not the slightest doubt that Indonesia formed an intrinsic whole made up of the islands acquired from the Dutch and the waters between those islands, that Indonesia had to take this form or it would not really be Indonesia, and that they would fight to gain international recognition of this unity that they believed already existed. Everything, including 421

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the prospect of acquiring one of the largest economic zones in the world, was subservient to this vision. With the benefit of hindsight historians risk detecting plans where none existed. But all the evidence indicates that the government developed a fairly clear plan not long after Mochtar returned from exile. This plan was to focus on winning the support or at least acquiescence of neighbouring states and then to gain acceptance of the archipelagic concept in every possible international forum. The government added a third element to its plan around 1973 when it began trying to insert a territorial clause into bilateral agreements on double taxation and other matters. This was basically the plan the government pursued right up until the Jakarta Treaty in February 1982, the double-taxation agreement with Japan the following month, and the vote on the convention the month after that. Probably the most important of these three elements was the support of neighbouring states. Without that support the campaign might well be doomed. With it, it might even be possible to weather a failure of the conference to conclude a convention. Of all the neighbours the most important was its former adversary Malaysia. The July 1976 memorandum of understanding was a major breakthrough from the Indonesian point of view. In addition to what we might call the three formal elements of the plan there was also an informal element, and that was to present Indonesia’s position at academic conferences devoted to the law of the sea. This element was in place at least as early as 1972 when Mochtar and Djalal attended the Law of the Sea Institute conference in Rhode Island. Over the course of the 1970s Djalal in particular used such occasions to drive home the message that UNCLOS III would have to find a way to accommodate the interests of archipelagic states. At the heart of the archipelagic campaign during most of this period were two individuals who regarded it as virtually their life mission to gain recognition of the principles in Law No.4, namely, Mochtar and Djalal. They had much in common. Both had higher degrees from the US. Both wrote doctoral theses on the law of the sea. And both had been directly involved in the archipelagic question for many years; Mochtar had of course drafted the Djuanda Declaration and was heavily involved in the preparation of Law No.4, while Djalal had helped to draft Regulation No.8. Most important from the government’s point of view they worked well together. This was largely because however much they had in common they had very different personalities. Mochtar often referred to himself and Djalal as Dr Jekyll and Mr Hyde, a characterization Djalal readily accepted.3 Djalal was often the one to take the lead in negotiations. He was tough, incisive, a master of detail, combative, seemingly uncompromising, withering in highlighting the hypocrisy of the major powers, able to convey a point in a few choice words. At some stage Mochtar would step into the negotiations, coming across as urbane, understanding of the views of those on the other side, collaborative and ready to accommodate but in reality not conceding a great deal. There was it appears complete trust between the two men. According to Djalal, they often had vigorous

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debates about how to handle negotiations but once they had agreed on a course of action, or Mochtar had decided on what to do, Mochtar could be certain that Djalal would carry it out. This appears to have become particularly important as Mochtar became increasingly involved in his ministerial duties, which (as justice minister) included drafting the New Order’s electoral laws and defending the government’s policy on political prisoners and (as foreign minister) defending the Indonesian takeover of East Timor, responding to the Vietnamese invasion of Cambodia, and handling relations with China. Djalal later recalled just one occasion when Mochtar had reason to refer to his conduct of negotiations in the minister’s absence. Sometime during discussions with his US counterparts at the Geneva session of 1975 Djalal’s exasperation with the Americans reached the breaking point. “Don’t forget we’re not making the archipelagic principle for the US,” he said. “We are doing it for Indonesia!” When the Americans complained to Mochtar about Djalal’s outburst Mochtar’s response was simply to inform him of the complaint and then to drop the matter.4 The campaign included many other officials who shared the same sense of mission. Among them were Munadjat Danusaputro, who attended the first Geneva conference with Mochtar; E.H. Wiryosaputro-Laurens, whose primary concern apparently was to maintain Indonesia’s standing in the G77; Nugroho Wisnumurti, who like Mochtar had a US law degree, often stood in for Djalal in the Second Committee, and concluded the Jakarta Treaty; and several senior diplomats including Anwar Sani and Abdullah Kamil. And then there were the representatives of the organization that dominated the New Order, the military. Among them were the heads of Pankorwilnas, of whom Air Marshal Sudarmono proved to be the most important, Colonel Trihardjo, and the navy’s hydrographer, Adi Sumardiman. For the most part this collection of officials and officers worked well together. The only time when this was not the case occurred during the first couple of years Sudarmono was the head of Pankorwilnas when there was some confusion over who was really in charge of the campaign. Once Mochtar reasserted his control over the campaign Sudarmono appears to have assumed the role of yet another hardworking, cooperative member of the team working for recognition until he was appointed ambassador to the Philippines at the end of 1976. The implementation workshop held in February-March 1977 reveals the extent to which the leaders of the archipelagic campaign were able to mobilize the cooperation of officials from many departments. At the apex of this campaign was the president. Suharto had a knack for attracting exceptionally able individuals to work on behalf of the regime. The most famous of these were the technocrats led by the economist Widjojo Nitisastro. For the most part Suharto left those with a better understanding of technical matters than he had to get on with their work as they saw fit. But he kept himself informed of what they were doing and rapidly acquired an understanding of the issues they were dealing with. Mochtar’s regular meetings with Suharto appear to

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have been a crucial part of the government’s campaign. As best we can tell, Suharto listened attentively to Mochtar’s reports, encouraged the delegation’s work, and occasionally offered suggestions, as when he came up with the idea of axis lines. Of course, Suharto quickly rid himself of members of the regime who failed to meet his expectations or threatened to undermine his authority, usually by giving them plum business opportunities or appointing them to ambassadorships (this does not appear to have been the reason for Sudarmono’s appointment) and only occasionally putting them in prison, but there is no evidence whatsoever that he was ever dissatisfied with Mochtar. During the critically important negotiations with the US in June-July 1977 Suharto gave Mochtar the authority to make decisions on the president’s behalf. Suharto’s active support almost certainly strengthened Mochtar’s bargaining position at the conference. In stark contrast, Elliot Richardson had no such relationship with his president—indeed, he did not have a single meeting with Carter during the four years he was the president’s special representative for the law of the sea—and it weakened both his authority within the US government and his clout at the conference.5 As well as the president’s backing the delegation had the support of the broader public. Whatever their views of the New Order, those Indonesians committed to the idea of Indonesia—probably everyone but certain groups in Aceh, the Moluccas, and Irian Jaya and, after December 1975, a growing proportion of the population of East Timor—now conceptualized Indonesia as being made up of the waters between the country’s islands as well as of the islands themselves. There was therefore no questioning of the basic objective of the delegation. Nor were there any powerful groups outside the government as there were in the United States demanding that the delegation push their particular interests. Even so, the leaders of the delegation were not oblivious to those outside the inner circles of power. Mochtar’s statements to the press were carefully calibrated not to raise popular expectations that the delegation might not be able to fulfil. But for the most part Indonesia’s representatives were able to focus entirely on their work of gaining international recognition of the archipelagic principle. Single-minded though Indonesia’s archipelagic campaigners were, they were also hard-headed assessors of what they could and could not achieve. Like the representatives of all other states at UNCLOS III they worked to have their ideas incorporated into the negotiating texts but usually did not get everything they wanted. During the third session, when the conference was desperately seeking a way forward, Satya Nandan, seeing no other way to break the stalemate within the group of archipelagic states other than to present the Indonesians and Filipinos with a fait accompli, seized the opportunity presented to him as rapporteur of the Second Committee to draft an archipelagic package. While the Indonesians and Filipinos welcomed the inclusion of the archipelagic principle in the negotiating text, they chose to fight several of the passage provisions that Nandan had included. Whereas the Filipinos maintained their outright rejection of those provisions,

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however, the Indonesians searched for ways to accommodate the maritime powers while protecting Indonesia’s interests. The “grand compromise”6 was finally worked out during negotiations with the US during the sixth session. That compromise gave the maritime powers navigational and overflight rights but in various ways, including incorporation of the Indonesian concept of axis lines, affirmed the archipelagic state’s sovereignty over its archipelagic waters. Using the authority Suharto had given him, Mochtar did not have to endorse this compromise. He could have decided to hold out for a better deal. But from our vantage point decades later it is difficult to imagine that the Indonesian government would have gained more by doing so. There was every reason to believe that after the sixth session it would become virtually impossible to make major amendments on any question related to transit. The two superpowers were closely cooperating on this question and there was little prospect of their changing their position; they had gone as far as they could go without undermining their fundamental strategic interests, of which retaining as great a capacity as possible to take action against each other was perhaps the biggest. There was, moreover, a good chance that if Indonesia did not embrace the package worked out with the US it would end up with something much worse. And even if Indonesia did manage to have a better package incorporated into the convention it probably would mean little if the US and the USSR found it unacceptable. In the end, it was judicious and pragmatic assessments of this sort that at that crucial moment in July 1977 led Mochtar to endorse the package. The same hard-headed calculus was also at work when the Indonesian delegation decided that the best way to deal with a problem was to do nothing. One of the greatest threats to its campaign was the intention of India, Ecuador, and a number of other states to extend any provisions for archipelagos of states made up entirely of islands to archipelagos belonging to continental states. The US was prepared to reach some sort of accommodation with Indonesia, the Philippines, Fiji, and the Bahamas. Indeed, it needed to do so in order to maintain as good relations as possible with them. But both the US and the USSR drew the line at “genuine” archipelagic states. Any extension of the concept beyond those states was completely unacceptable. In this circumstance the Indonesians might have spoken against extending the concept. Instead, not wanting to alienate key members of the G77, they kept quiet and let those delegations representing the states that would be most directly affected by any extension of the concept—most notably Turkey—fight the battle for them. It was a nerve-wracking wait but in the end, thanks in large part to Aguilar’s adroit chairmanship of the Second Committee, most of the states trying to extend the concept abandoned their campaign. The Indonesians adopted a similar approach in relation to the straits issue. For three years after the sixth session they neither endorsed nor attacked the transit passage regime. Either course could have been disastrous. Instead, while quietly working with Malaysia and Singapore on an “interpretive statement”

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regarding article 234 of the ICNT, they said nothing during the formal meetings of the conference regarding Indonesia’s position on straits. Only in August 1980, by which time the interpretive statement was nearly finalized and the conference was preoccupied with other matters, did Djalal suggest to a plenary meeting that the articles dealing with archipelagos and straits should be considered “settled”. Likewise, the Indonesians never took part in the fiery debates about the question of prior notification and authorization in formal meetings near the end of the conference. This tactic was apparently the result of a careful judgement that pressing this issue too hard could well bring the conference to an end and with it the archipelagic package. Finally, it is worth reflecting on the uncertainty that enveloped the work of the delegation from their first foray at the Seabed Committee right up to the vote on 30 April 1982. Those Indonesian officials who were at the forefront of the archipelagic campaign have rarely admitted to having any doubts about their ultimate success. In view of the belief they had that they were fulfilling some higher purpose this confidence is hardly surprising. In 2007, however, Hasjim Djalal acknowledged that the delegation “often had to face up to difficult situations as well as gloomy prospects”, “even facing impasses that could have disturbed the delegation’s determination to keep fighting”.7 As it happened, they kept fighting, constantly coming up with (as Djalal put it) “new ways of thinking” to find ways out of these impasses, and in the end they gained most of what they had set out to achieve. Most important of all they won acceptance of the fundamental principle expressed the declaration of 13 December 1957 that “the land and waters of Indonesia must be regarded as one single unity”. But it had been a “struggle” every step of the way.

CHAPTER 19

Epilogue Epilogue

As it turned out, the signing of the convention did not quite mark the end of the archipelagic campaign. In 1983, “to support the realization of Wawasan Nusantara”, the government passed a law establishing Indonesia’s EEZ.1 It also set about ratifying the convention. This move was not entirely straightforward, for, Djalal explains, “various government departments and authorities had to be convinced that Indonesia should ratify the Convention”,2 but Indonesia finally did ratify the convention in 1985. During these years when the convention had yet to come into force the government continued to regard bilateral agreements as vital to gaining recognition of Indonesia’s standing as an archipelagic state. Between the signing of the convention in 1982 and the end of 1988 it concluded eight more double taxation agreements that included a territorial clause. The agreements with seven of them—Denmark, Austria, Finland, India, New Zealand, the Republic of Korea, and Norway—followed the now standard formula by defining Indonesia as comprising the territory of the republic “as defined in its laws”.3 The exception was an agreement with the United States in 1988. Unlike all the other agreements it made no mention of Indonesian laws. Instead it defined “Indonesia” as comprising “the territory of the Republic of Indonesia and the adjacent seas which the Republic of Indonesia has sovereignty, sovereign rights or jurisdictions in accordance with the provisions of the 1982 United Nations Convention on the Law of the Sea”. Accompanying the agreement was an exchange of notes in which the US government recognized “the archipelagic States principles as applied by Indonesia” on the understanding that Indonesia applied them in accordance with Part IV of the convention and that “Indonesia respects international rights and obligations pertaining to transit of the Indonesian archipelagic waters in accordance with international law as reflected in that Part”.4 Qualified though this wording was, the US had formally recognized Indonesia as an archipelagic state, thirty years after Arthur Dean had mocked its claim at the first Geneva conference. In September 1988, just a few weeks after the exchange of notes, the Indonesian military alarmed the maritime states by closing the Sunda Strait to international 427

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traffic twice and the Lombok Strait on four other occasions.5 According to the official explanation the straits were closed for naval exercises in these areas but it is likely that the military, which apparently acted without consulting the Foreign Ministry, wanted to demonstrate both to the maritime powers and to other components of the Indonesian state that Indonesia had the sovereign right to close these waters if it chose to do so. The maritime states made their objections known to the Indonesian government but were determined not to make the incident into a major international dispute. In October Australia’s foreign minister said that as a result of his discussions with Indonesian leaders he had been assured that “the international freedom of passage in these waterways is acknowledged [and] will be respected” and that he did not “anticipate any further difficulties arising of this kind in future”.6 Aside from their desire not to provoke Indonesia one reason for the maritime states’ caution was uncertainty over the status of the convention. It would be difficult to challenge Indonesia on the basis that it had violated the convention, since the convention had not yet come into force.7 According to article 308 the convention would come into force a year after the sixtieth ratification.8 By January 1990 a total of 41 states had ratified the convention. Because all but one of these states, Iceland, were developing states, supporters of the convention led by Satya Nandan, who had been the secretary-general’s special representative for the law of the sea convention since 1983, held grave concerns that it might come into force without the participation of the major industrial powers. Their fear was that such an outcome would undermine the standing of the convention as a truly international agreement as well as deprive the various institutions established under the convention of operating funds. Because the greatest impediment to the developed states’ ratification was the seabed mining regime in Part XI the UN held a series of consultations to prepare a document that it was hoped would overcome their objections to Part XI by setting out precisely how it would be implemented. At the forefront of this work was Nandan, while Hasjim Djalal was heavily involved as the head of a committee established to protect the interests of developing states. “It is fair to say”, wrote Miles, that the implementation agreement that came out of the consultations “effectively removes all objections to Part XI by the US and its allies”.9 In July 1994 the United Nations General Assembly adopted the agreement without a single dissenting voice; among those supporting adoption of the agreement was the US. By this time the convention already had the required number of ratifications and it came into force on 16 November 1994, while the implementation agreement began to be applied provisionally on the same day. Mochtar’s successor as foreign minister, Ali Alatas, described the coming into force of the convention as “one of the pinnacle accomplishments of Indonesia’s diplomatic struggle”.10 In keeping with the position he had often adopted before 1982, however, Mochtar himself downplayed the significance of this event for Indonesia. “Indonesia’s claim had already been recognized by nearly 16 countries through various bilateral

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agreements,” he was reported as saying.11 Aside from the Jakarta Treaty of February 1982 the most important of these was the double taxation agreement with the US. Shortly after the convention came into force the government revoked Law No.4 of 1960 and replaced it with Law No.6 of 1996. After noting the “Indonesian nation had successfully struggled for the concept of an archipelagic state”, Law No.6 set out the basic principles governing the definition of “the territories of Indonesian waters”, the delimitation of these territories, the innocent passage of foreign vessels, and archipelagic sea lanes passage by foreign ships and aircraft. Unlike Law No.4, which based its claim entirely on history, geography, and the need to unify Indonesia’s territory, Law No.6 made frequent references to international law, particularly the convention, which of course Indonesian diplomats had played a large part in crafting. Like much Indonesian parliamentary legislation, Law No.6 gave little detail on how the principles it enunciated would be implemented. Article 18(3), for example, declared that the rights and obligations of foreign vessels and aircraft undertaking archipelagic sea lanes passage “shall be regulated by Government Regulation”. The convention gave an archipelagic state the choice of whether or not to establish sea lanes. Until it did so foreign ships and aircraft would, under article 53(12), enjoy the right of archipelagic sea lanes passage “through the routes normally used for international navigation”. If it did establish sea lanes, article 53(4) required it to include “all normal routes”. However, because there was no need to have more than one route that had the same entry and exit points it was in the archipelagic state’s interests to go ahead and designate sea lanes. In 1996 the government announced that it would establish three sea lanes on north-south axis lines. The first ran from the South China Sea to the Sunda Strait by way of the Karimata Strait, the second from the Sulawesi Sea to the Lombok Strait by way of the Makassar Strait, and the third from the Pacific Ocean to the Indian Ocean by way of the Maluku and Banda seas. (The third sea lane was located well away from Buru; presumably this was not done because of the concerns raised by Indonesian officials during their talks with the Americans in 1974, since the political prisoners held in camps on the island had been released in 1979.) The maritime powers objected that this proposal violated the requirement to include “all normal routes”, since it failed to designate an east-west sea lane in the Java Sea. After prolonged negotiations that appear to have been every bit as difficult as those that took place during UNCLOS III the International Maritime Organization (as the IMCO had become) eventually endorsed a “partial designation” of Indonesia’s sea lanes, as shown in figure 19.1.12 As part of these negotiations Indonesia reached agreement with the US and Australia on 19 rules on the exercise of archipelagic sea lanes passage. In most respects these rules simply elaborated on articles in the convention but some of them went part of the way towards giving Indonesia provisions it had been unable to have included in the convention. Thus, foreign warships and ships

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using nuclear power were “recommended” to give prior notification of their passage (here at last was Mochtar’s “beautiful solution”), while foreign military aircraft were “requested” to maintain contact with the appropriate air traffic controller.13 Most of the 19 rules were incorporated into Regulation No.37 of 2002 but for unknown reasons neither the recommendation to give prior notification nor the request that military aircraft maintain radio contact found their way into the regulation. In one respect, however, the regulation was much more restrictive than the 19 rules. Whereas the 19 rules allowed archipelagic sea lanes passage along routes in the Java Sea until Indonesia had designated a full set of sea lanes, the regulation prohibited such passage anywhere except along the three north-south sea lanes listed in the regulation. The implication was that ships transiting the Java Sea would have to do so under the innocent passage regime. The clash between the government’s view embodied in the Regulation No.37 and the position taken by the maritime powers emerged most spectacularly when the USS Carl Vinson and accompanying aircraft conducted exercises near Bawean in July 2003.14 For Indonesians the most disturbing aspect of the episode was the claim by the pilot of one of the US F-18 Hornets involved in the exercise that the US aircraft were operating over “international waters”.15 Apparently this claim was not an isolated event, for in 2008 a senior official in the Department of Foreign Affairs complained of statements by “some user states that when they are navigating or traversing” the archipelago “they are navigating in international waters”.16 The government still has not designated an east-west sea lane but Indonesian sources imply that the government has conceded the de facto existence of such a lane even if it has not been formally declared. Another task facing the government after the enactment of Law No.6 of 1996 was the revision of Indonesia’s system of archipelagic baselines. The most spectacular change concerned the waters between Sumatra and Borneo. For many years Indonesian officials had wanted to redraw the baselines in this area in order to remove the great “pocket [kantung)]” of high seas that was such a conspicuous feature of the map accompanying Law No.4 (see figure 5.2).17 During the negotiations that led to the establishment of the three sea lanes the US suggested that it might in fact be useful to bring all the waters between Sumatra and Borneo under Indonesian sovereignty, for otherwise the government would not be able to designate a sea lane in that area. After Singapore and Malaysia gave their approval on the condition that it would not affect their existing agreements with Indonesia the government issued a regulation in 1998 that removed the pocket (see figure 19.1). “So…don’t blame the Americans all the time!” Djalal was to say to his colleagues after the US helped bring about this major change to the map of Indonesia.18 There were many less spectacular revisions as well. For the most part these concerned two types of problems that had emerged over the years. First, at least from the time of the earliest negotiations with Australia officials had been aware

Figure 19.1 Indonesia’s archipelagic baselines and archipelagic sea lanes in 2002

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that at least some of the straight baselines listed in the law cut across the outer edges of certain islands (see figure 7.5). Survey work by Adi Sumardiman beginning in the late 1970s revealed several more such cases.19 This problem occurred not only because of the rudimentary methods used in 1960 to determine the baselines but also because Law No.4 had included no “normal” baselines (namely, baselines following the low-water line) that could have been used to go around the outer edge of the outermost islands. Second, officials had also been aware since as early as the first negotiations with Malaysia over continental shelf boundaries that Law No.4 had not included within its system of straight baselines certain features that the government believed, or had come to believe, belonged to Indonesia. This failing was a problem from the Indonesian point of view not only because it violated the basic principle that the baselines should enclose all of Indonesia’s territory but also because some of them could be used as basepoints. The most important of these features were the disputed islands of Sipadan and Ligitan. In 2002, after a thorough resurvey of Indonesia’s basepoints, the government issued a regulation, Regulation No.38, listing a new set of baselines (figure 19.1). Notable aspects of this law were the inclusion of many “normal” baselines, the use of Sipadan and Ligitan as basepoints, and the gap in the system of baselines in the vicinity of East Timor, which had just obtained its independence. There were also some adjustments to take full advantage of the provision in article 47(4) of the convention permitting the use of low-tide elevations as basepoints as long as they are no more than 12 miles from the nearest island and to ensure that Indonesia conformed to the requirement in article 47(2) that no more than 3 percent of its baselines be more than 100 miles long. In 2008 the government revised the baselines in the Sulawesi Sea following the award of Sipadan and Ligitan to Malaysia by the International Court of Justice in 2002 and added new baselines to the north and east of East Timor in a way that closed the gap in Indonesia’s system of baselines.20 During the intense debates over the reform of the 1945 constitution that took place after the collapse of the New Order in 1998 there were moves to amend the constitution to reflect the radical reconception of Indonesia’s territory that had taken place since 1957. In 2000 the MPR inserted into the constitution a new article (25A) proclaiming the “Unitary State of the Republic of Indonesia” to be “an archipelagic state”. The MPR then turned its attention to the only article in the 1945 constitution to refer to water, article 33(3), according to which “the land, the waters and the natural riches contained therein shall be controlled by the State and exploited to the greatest benefit of the people”. A team of experts advising the committee assigned to draft amendments on behalf of the MPR believed that the article should refer not only to the land and water but also to the sea, seabed, and air space now under Indonesian jurisdiction. Because Indonesia’s “struggle” in the law of the sea had given it international recognition not only of sovereignty over its archipelagic waters and territorial sea but also sovereign rights over its EEZ and continental shelf the experts also believed that it would be more appropriate to use

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the word “regulated [diatur]” rather than “controlled [dikuasai]”. They therefore proposed that article 33(3) be amended to read as follows: “The land, the sea, including the seabed and the land beneath it, the air space above it, together with all the environment and wealth contained in the zone of sovereignty and authority of Indonesia is to be regulated by the state according to law and used as much as possible for the prosperity of the people”.21 This proposal made little impression on the factions making up the drafting committee, for subsequently they agreed to expand “the land, the waters and the natural riches” to include Indonesia’s angkasa but otherwise to leave the article exactly as it was. Hasjim Djalal, who had been a member of the team of experts and had gained the impression that the committee had accepted the amendment proposed by the experts, was stunned by this turn of events. In his view the factions had not only failed to improve article 33(3) but had in fact made it even worse, since the word angkasa can be taken to encompass not merely air space but also outer space, over which no state is entitled to claim sovereignty.22 In the end the MPR decided not to insert angkasa. Instead of adopting the experts’ proposal, however, it left the article exactly as it was in the 1945 constitution. This decision was not because the MPR was unappreciative of what Indonesia had achieved since December 1957, however. Rather it was because the MPR did not share the experts’ concern about the supposed deficiencies of article 33(3),23 because it did not want to introduce any changes that might detract from the familial principles that lie at the heart of article 33, and because in any case its objective had not been to rewrite the constitution but to amend those articles that seemed in most need of repair such as those regarding elections and human rights.24 Since signing the convention the government has continued to give a great deal of attention to Indonesia’s maritime boundaries. After failing to reach agreement on a maritime boundary in the Timor “gap” Indonesia and Australia instead signed a treaty in 1989 establishing a Zone of Cooperation for the exploitation of oil and gas in that area; that agreement remained in place until East Timor’s independence. In 1997 Indonesia and Australia signed a comprehensive treaty on their maritime boundaries. In 2003 Indonesia and Vietnam finally reached agreement on a continental shelf boundary in the South China Sea. In 2009 Indonesia and Singapore extended the territorial sea boundary that they had agreed on in 1973 into the western part of the Singapore Strait. And in 2014 Indonesia and the Philippines agreed on an EEZ boundary in the Sulawesi Sea; a notable feature of this boundary was that the Philippines was prepared, at least in this area, to disregard the 1898 treaty lines and accept a boundary that fully recognizes Indonesia’s sovereignty and sovereign rights in the waters near Miangas. Much work remains to be done. Neither Indonesia nor Australia has ratified the 1997 treaty. The ICJ’s ruling in favour of Malaysia in 2002 resolved the question of ownership of Sipadan and Ligitan but not the question that had brought about the dispute in the first place, namely, the location of a continental

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shelf boundary in the Sulawesi Sea, or the problem of establishing an EEZ boundary in that area. Tensions over rights in the Sulawesi Sea came close to open conflict in 2005. Another area where Indonesia and Malaysia have been unable to reach agreement is the northern part of the Malacca Strait, where the Indonesians argue that Indonesia’s EEZ should overlap Malaysia’s continental shelf. And so far Indonesia has no maritime boundaries of any type with East Timor or Palau. Altogether there are about ten areas where a maritime boundary of one type or another still needs to be determined.25 This is some of the unfinished business of the great reconceptualization of maritime space that began after World War II. Whatever doubts may remain about the precise outer limits of the area over which Indonesia has sovereignty or sovereign rights, however, none of Indonesia’s neighbours question its sovereignty over the waters between its islands. That is one of the signal triumphs of Indonesia’s archipelagic campaign. When he returned from Montego Bay Mochtar told reporters that while Indonesians had every reason to be pleased with international recognition of the archipelagic principle and the concept of an EEZ the next problem was to take full advantage of what Indonesia had gained.26 As well as establishing sea lanes, defining baselines, and negotiating boundaries the government has faced the challenge of gaining the maximum possible benefit from the riches within its vast maritime space without squandering those riches. In some ways this challenge has been far more difficult than the archipelagic campaign, for while Indonesia’s archipelagic campaigners shared a common goal and generally worked as a team different components of the Indonesian state that have an interest in the maritime sphere have often operated independently of one another and even in opposition to the government’s stated goals, enabling rampant exploitation of marine resources, particularly overfishing by both foreign and local fishing boats. Since 1998 the Indonesian government has taken steps to stop overfishing and generally protect the marine environment but ongoing problems of coordination have undermined their success. In 2013 an assessment of the body charged with coordinating the activities of the various maritime enforcement agencies observed that it was “under-funded, under-equipped, and under-staffed” and that these agencies continued to engage in “competition and institutional turf battles for legitimacy”.27 So here too much work remains to be done. But again one thing is not in doubt. The waters between Indonesia’s islands are as much a part of Indonesia as its land territory. It is for Indonesians to decide how best to realize the full promise of the vision their government first expressed on 13 December 1957.

Notes 000–000 pp. to Notes

Preface 1 The most important of these are Kusumaatmadja, Bunga Rampai Hukum Laut (Jakarta: Penerbit Binacipta, 1978); Djalal, Perjuangan Indonesia di Bidang Hukum Laut (Jakarta: Penerbit Binacipta, 1979); Danusaputro, Tata Lautan Nusantara dalam Hukum dan Sejarahnya ([Bandung]: Binacipta, 1980); and Danusaputro’s multivolume Wawasan Nusantara (Bandung: Alumni, 1978–1984). 2 Dino Patti Djalal, The Geopolitics of Indonesia’s Maritime Territorial Policy (Jakarta: Centre for Strategic and International Studies, 1996). 3 See Djalal, Perjuangan Indonesia, and various papers in Kusumaatmadja, Bunga Rampai Hukum Laut. 4 Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, 2nd edition (Leiden and Boston: Martinus Nijhoff, 2005), p.168. 5 Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery (New York and London: W.W. Norton, 2010), p.xx.

Chapter 1 1 2 3

4 5 6

Conrad, Victory: An Island Tale (Toronto: J.M. Dent (Canada), 1958 [1915]), p.29. Hugo Grotius, The Freedom of the Seas, translated by Ralph Van Deman Magoffin (New York: Oxford University Press, 1916), pp.28, 30. In addition to the sources cited this and the following paragraph draw on R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd edition (Manchester: University of Manchester Press, 1999), chapter 4. Sayre A. Swarztrauber, The Three-Mile Limit of Territorial Seas (Annapolis: Naval Institute Press, 1972), pp.71–72. Cornelius van Bynkershoek, De Dominio Maris Dissertatio, translated by Ralph Van Deman Magoffin (New York: Oxford University Press, 1923), p.44. Swarztrauber, The Three-Mile Limit, pp.57–59; Thomas Wemyss Fulton, Sovereignty of the Sea (Edinburgh: W. Blackwood, 1911), pp.573–74. 435

436

NOTES TO PP. 3–8

7 Scott C. Truver, The Strait of Gibraltar and the Mediterranean (Alphen aan den Rijn: Sijthoff & Noordhoff, 1980), p.171 (quoting a note from the British chargé d’affaires in Madrid to the Spanish minister of state). The note and the Spanish reply are on pp.254–55. 8 Fulton, Sovereignty of the Sea, p.592. 9 Lord Grantham, quoted in Nicholas Tarling, Anglo-Dutch Rivalry in the Malay World 1780–1824 (St Lucia: University of Queensland Press, 1962), p.7. 10 See James Francis Warren, The Sulu Zone, 1768–1898: The Dynamics of External Trade, Slavery, and Ethnicity in the Transformation of a Southeast Asian Maritime State (Singapore: Singapore University Press, 1981). 11 Wallace, The Malay Archipelago, 10th edition (London: Macmillan, 1890), pp.333–34. First published in 1869. 12 Robert Cribb, Historical Atlas of Indonesia (Richmond: Curzon, 2000), p.141. 13 Eric Tagliacozzo, “Hydrography, technology, coercion: mapping the sea in Southeast Asian imperialism, 1850–1900”, Archipel, 65 (2003), 89–107, and “The lit archipelago: coast lighting and the imperial optic in insular Southeast Asia, 1860–1910”, Technology and Culture, 46 (April 2005), 306–328. 14 Kent E. Carpenter, “A short biography of Pieter Bleeker”, The Raffles Bulletin of Zoology, 2007, supplement no. 14, p.5 (http://lkcnhm.nus.edu.sg/rbz/biblio/s14/ s14rbz01_KentE-pp5–6.pdf). 15 Hendrik M. van Aken, “Dutch oceanographic research in Indonesia in colonial times”, Oceanography, 18, 4 (December 2005), p.32 (http://www.tos.org/oceanography). 16 Staatsblad van Nederlandsch-Indië (1870), no. 107, article 5. 17 G.J. Resink, Indonesia’s History between the Myths (The Hague: W. Van Hoeve, 1968), p.124. 18 Staatsblad van Nederlandsch-Indië (1879), no. 224. 19 James R. Rush, Opium to Java: Revenue Farming and Chinese Enterprise in Colonial Indonesia, 1860–1910 (Ithaca: Cornell University Press, 1990), pp.155–56. 20 G. Teitler, Ambivalentie en Aarzeling: Het Beleid van Nederland en Nederlands-Indië ten aanzien van Hun Kustwateren, 1870–1962 (Assen: Van Gorcum, 1994), pp.13–14. We owe a general debt to Teitler not only for the highly informative text of his book but also for his citations, many of which we followed up during research in the Nationaal Archief. 21 Staatsblad van Nederlandsch-Indië (1877), no. 180; Resink, Indonesia’s History between the Myths, p.122. 22 On the fisheries of the Netherlands Indies at this time see John G. Butcher, The Closing of the Frontier: A History of the Marine Fisheries of Southeast Asia, c.1850–2000 (Singapore: Institute of Southeast Asian Studies, 2004), chapter 4. 23 Teitler, Ambivalentie en Aarzeling, pp. 37–40. 24 Our account of the activities of the Australian pearl-shellers draws heavily on the research done by Steve Mullins: “Australian pearl-shellers in the Moluccas: confrontation and compromise on a maritime frontier”, The Great Circle, 23, 2 (2001),

NOTES TO PP. 8–13

25 26 27 28 29 30 31 32

33 34 35 36

37

38 39

437

3–23, and “Vrijbuiters! Australian pearl-shellers and colonial order in the late nineteenth-century Moluccas”, The Mariner’s Mirror, 96, 1 (2010), 26–41. Heijting to Governor-General, 18 January 1886, MR 119/1886, AMK, inv. 2.10.02, no. 6451 (NA). J.A. Roëll to Governor-General, 1 May 1893, V 13 July 1893, no. 47, AMK, inv. 2.10.02, no. 4711 (NA); Teitler, Ambivalentie en Aarzeling, p.41. Except for the reference to the captain’s log, this and the following paragraph are based on Van Hoëvell to Governor-General, 1 April 1893, V 13 July 1893, no. 47. Lionel Hancock, “Report on pearl fishery in Dutch East Indies”, July 1894, para.14, FO 37/784 (UKNA). Roëll to Governor-General, 1 May 1893, V 13 July 1893, no. 47; Teitler, Ambivalentie en Aarzeling, p.72. Van Hoëvell to Governor-General, 26 June 1893, A162, AMBZ, inv. 2.05.03, no. 366 (NA); Mullins, “Australian pearl-shellers in the Moluccas”, pp.14–15. Staatsblad van Nederlandsch-Indië (1893), no. 261. Hancock, “Report on pearl fishery in Dutch East Indies”, para.2. As this wording suggests, Van Hoëvell was by no means happy with the government’s position. Van Hoëvell to Governor-General, 16 December 1893, V 28 September 1896, no. 41, inv. 2.10.02, no. 5087, AMK (NA). T.H. Haynes to Lord Rosebery, 1 February 1894, and Law Officers to Lord Kimberley, 28 March 1894, FO 37/784. Director of Internal Administration to Governor-General, 29 August 1891, V 28 September 1896, no. 41. Advies van den Raad van Nederlands-Indië, 20 November 1891, V 28 September 1896, no. 41. “Resumé van de antwoorden der betrokken hoofden van gewestelijk bestuur op de dezerzijdsche circulaire van 4 April 1893 no. 1986 betreffende het visschen van parelschelpen, parelmoerschelpen en tripang in de territoriale wateren in Nederlandsch-Indië”, V 18 September 1896, no. 48, AMK, inv. 2.10.82, no. 5083 (NA). For greater detail on these ideas and practices see John G. Butcher, “Resink revisited: a note on the territorial waters of the self-governing realms of the Netherlands Indies in the late 1800s”, Bijdragen tot de Taal-, Land- en Volkenkunde, 164, 1 (2008), 1–12, from which we have drawn in writing this chapter. This account is based on Mullins, “The Costa Rica Packet affair: colonial entanglements and tests of Empire in pre-Federation New South Wales”, Journal of the Royal Australian Historical Society, 87 (2001), 267–85, and Teitler, Ambivalentie en Aarzeling, pp.14–16. Fulton, Sovereignty of the Sea, pp.686–87; Swarztrauber, The Three-Mile Limit, p.79. John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been Party (Washington: Government Printing Office, 1898), vol.5, pp.4952–54; Teitler, Ambivalentie en Aarzeling, pp.15–16. According to Teitler (p.15),

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40 41 42 43 44 45 46

47

48

49 50

51 52 53 54

55 56 57 58

NOTES TO PP. 14–20

an adviser to the Ministry of Foreign Affairs had expressed the view that the government should argue that it did not matter where the Costa Rica Packet had come across the boat, since stealing was illegal on the high seas just as piracy was, but it chose not to adopt this defence. “Afzonderlijk advies van de Staatsraden Den Beer Portugael en Asser”, V 31 January 1899, no. 5, AMK, inv. 2.10.82, no. 5346 (NA). Staatsblad van Nederlandsch-Indië (1902), no. 4. Except where indicated our account is based on Teitler, Ambivalentie en Aarzeling, pp.42–53, where the debate is described in much more detail. Advies van den Raad van Nederlandsch-Indië, 25 August 1899, V 20 September 1902, no. 34, AMK, inv. 2.10.36.04, no. 143 (NA). See the table in Swarztrauber, The Three-Mile Limit, p.41. An observation made at 20 feet above the shoreline would extend the distance to 5.1 miles. Resident of Riau to Governor-General, 30 May 1899, V 20 September 1902, no. 34. First Government Secretary to the Resident of South and East Borneo, 15 July 1910, Bijblad op het Staatsblad van Nederlandsch-Indië, vol. 44 (Batavia: Landsdrukkerij, 1911), no. 7295. In 1919 the government formalized that extinguishment in a statute concerning its agreements with the self-governing realms. “The territory of [these] lands,” it asserted, “includes no sea territory [zeegebied] of any kind.” Staatsblad van Nederlandsch-Indië (1919), no. 822, article I(1)(1). V 9 May 1905, no. 15, AMK, inv. 2.10.36.04, no. 311 (NA). See also V 17 August 1904, no. 20, AMK, inv. 2.10.36.04, no. 262 (NA), and a summary of these deliberations in Nota A3, in V 7 February 1916, no. 39, AMK, inv. 2.10.36.04, no. 1504 (NA). Staatsblad van Nederlandsch-Indië (1905), no. 436. This and the following two paragraphs are based largely on V 7 February 1916, no. 39, AMK, inv. 2.10.36.04, no. 1504; V 23 February 1916, no. 3, AMK, inv. 2.10.36.04, no. 1510; V 15 January 1918, no. 5, AMK, inv. 2.10.36.04, no. 1782; Teitler, Ambivalentie en Aarzeling, pp.74–77. Butcher, The Closing of the Frontier, pp.93–99, 136–37. Loudon, 31 December 1917, V 15 January 1918, no. 5. Teitler quotes the key passage in this document in Ambivalentie en Aarzeling, p.77. Cribb, Historical Atlas of Indonesia, pp.114–20. Howard Dick, Vincent J.H. Houben, J. Thomas Lindblad, and Thee Kian Wie, The Emergence of a National Economy: An Economic History of Indonesia, 1800–2000 (Crows Nest: Allen & Unwin, 2002), p.131. Nota A1, “Codificatie van het volkenrecht”, 19 October 1928, p.18, AMK, inv. 2.10.54, no. 927 (NA). Minister of Colonies to Governor-General, V 15 January 1918, no. 5, AMK (NA). Staatsblad van Nederlandsch-Indië (1918), no. 262. Staatsblad van Nederlandsch-Indië (1918), no. 263.

NOTES TO PP. 21–30

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59 Staatsblad van Nederlandsch-Indië (1920), no. 595. 60 Teitler, Ambivalentie en Aarzeling, pp.144–45. 61 This account is based mainly on documents in MR 659/1926, AMK, inv. 2.10.36.02, no. 245 (NA). 62 The muro ami fishermen set a large net along the slope of a coral reef and then drove the fish into the net using scare lines. Butcher, The Closing of the Frontier, pp.145–46. 63 Gooszen to Governor-General, 1 March 1926, MR 659/1926. 64 Staatsblad van Nederlandsch-Indië (1927), no. 144, article 3. 65 Staatsblad van Nederlandsch-Indië (1927), no. 145.

Chapter 2 1 For more detail see Butcher, The Closing of the Frontier, chapter 5. 2 Staatsblad van Nederlandsch-Indië (1927), no. 144, article 6(2). 3 Handelingen van den Volksraad, 31 July 1929 (17th meeting), pp.559–560, and 22 August 1929 (33rd meeting), pp.1218, 1233, 1246. The interjector was J.A.M. Bruineman, a sugar planter and leader of the Indies Catholic Party well known for his antagonism toward any challenge to Dutch authority. Also complaining about Japanese fishing in the Volksraad around this time was Kusumo Utoyo, the regent of Jepara. “Japansche visscherij in Indië”, Indische Gids, 51 (1929), 1256–57. 4 Ten Broecke Hoekstra to Governor-General, 31 October 1930, AMK, inv. 2.10.54, no. 951 (NA). The commander was referring to a letter he wrote in June 1928. 5 Rights and Duties of Neutral Powers in Naval War (Hague XIII) (18 October 1907) (http://avalon.law.yale.edu/20th_century/hague13.asp#art33), articles 3 (quote) and 25. We are grateful to Vincent Cogliati-Bantz for answering our questions about neutrality. 6 Ten Broecke Hoekstra to Governor-General, 31 October 1930. 7 Shabtai Rosenne (ed.), League of Nations Conference for the Codification of International Law (1930) (Dobbs Ferry, New York: Oceana Publications, 1975), vol. 2, p.395. Rosenne consolidated the original seven volumes into four volumes and added continuous pagination. All our references are to Rosenne’s volume and page numbers rather than those of the original publication. 8 Rosenne (ed.), League of Nations Conference, vol. 2, p.381. 9 Rosenne (ed.), League of Nations Conference, vol. 2, pp.385, 401. 10 Rosenne (ed.), League of Nations Conference, vol. 2, p.389. 11 Rosenne (ed.), League of Nations Conference, vol. 2, p.391. The preparatory committee had asked governments about three different possible approaches to the question of territorial waters (p.322). The quoted words come from its second option, the one tentatively endorsed by Norway. 12 Rosenne (ed.), League of Nations Conference, vol. 2, p.392. 13 Rosenne (ed.), League of Nations Conference, vol. 2, pp.407–8. 14 As Norway stated explicitly in its response. Rosenne (ed.), League of Nations Conference, vol. 2, p.392.

440

NOTES TO PP. 30–37

15 Jens Evensen, “Certain legal aspects concerning the delimitation of the territorial waters of archipelagos”, 29 November 1957, in UNCLOS I, Official Records, vol.1, pp.290–92. 16 Rosenne (ed.), League of Nations Conference, vol. 2, p.411. The committee is often referred to by the name of its rapporteur, Walther Schücking. 17 Rosenne (ed.), League of Nations Conference, vol. 2, pp.396 (Netherlands), 329 (Germany), 414–15 (Canada), 386 (Japan). 18 Rosenne (ed.), League of Nations Conference, vol. 2, p.392. For Sweden see p.408. In its response (p.374) Finland made a distinction between (1) a group of islands entirely separated from the mainland and (2) archipelagos (such as those of Norway, Sweden, and Finland) “adjacent” to the mainland. In the first case it supported the view that “where the distance between any two islands on the circumference of the group does not exceed twice the breadth of the territorial sea” those islands should be treated as “a single whole”, while in the second it appeared to take the position that there should be no limit on the length of the straight baselines from which the territorial sea was to be measured. 19 Rosenne (ed.), League of Nations Conference, vol. 2, pp.381, 335–36. 20 Rosenne (ed.), League of Nations Conference, vol. 2, pp.361–62. 21 Rosenne (ed.), League of Nations Conference, vol. 2, p.269. 22 Rosenne (ed.), League of Nations Conference, vol. 2, pp.414–15. 23 Rosenne (ed.), League of Nations Conference, vol. 2, p.269. 24 “Report of the Second Sub-Committee”, in Rosenne (ed.), League of Nations Conference, vol.4, p.1421. 25 Rosenne (ed.), League of Nations Conference, vol. 2, p.396 (emphasis added). 26 Rosenne (ed.), League of Nations Conference, vol. 2, p.382. 27 Rosenne (ed.), League of Nations Conference, vol. 2, p.272. 28 W.C. Beucker Andreae, as paraphrased by Teitler, Ambivalentie en Aarzeling, p.132. 29 Rosenne (ed.), League of Nations Conference, vol.1, p.xxxiii; vol. 4, p.1404. 30 Ten Broecke Hoekstra to Governor-General, 20 September 1930, AMK, inv. 2.10.54, no. 951 (NA). 31 Director of Agriculture, Industry, and Trade, 24 October 1930, and Ten Broecke Hoekstra to Governor-General, 31 October 1930, AMK, inv. 2.10.54, no. 951 (NA). 32 Governor-General to Minister of Colonies, 2 April 1931, para.19, AMK, inv. 2.10.54, no. 951 (NA). 33 Teitler, Ambivalentie en Aarzeling, p.136. 34 “Memorie van toelichting”, accompanying Governor-General’s letter to the Volksraad, 9 October 1934, V 27 November 1934, no. J33, AMK, inv. 2.10.36.51, no. 439 (NA). 35 Staatsblad van Nederlandsch-Indië (1935), no. 497. The only substantive change to the draft concerned the treatment of rocks, reefs, and banks. 36 Commander to Governor-General, 11 August 1933, bijlage III (Memorie van toelichting), p.7, V 27 November 1934, no. J33, AMK, inv. 2.10.36.51, no. 439 (NA). 37 Rosenne (ed.), League of Nations Conference, vol. 4, p.1410. Emphasis added.

NOTES TO PP. 38–43

441

38 Commander to Governor-General, 11 August 1933, p.5. 39 Commander to Governor-General, 11 August 1933, p.9. 40 Staatsblad van Nederlandsch-Indië (1935), no. 497, articles II, III, IV, and VII. The articles (in Arabic numerals) cited in earlier paragraphs were articles within article I. 41 The commander of the Indies navy referred to the “Netherlands Indies Archipelago” in a letter to the Governor-General, 31 October 1939, AMK V 8 January 1940, no.Y, inv. 2.10.36.51, no. 572 (NA). 42 The Council of the Indies expressed misgivings about treating the waters inside “a group of two or more islands” as internal waters but did not press the matter. Teitler, Ambivalentie en Aarzeling, pp.139–40. 43 S. Koshida to General Secretariat, 8 November 1934, and 15 January 1935, and “Uittreksel uit de nota der Algemeen Secretarie”, V 27 November 1934, no. J33. 44 J.C. Pabst to Minister of Foreign Affairs, 17 May 1935, V 27 November 1934, no. J33. 45 Howard Dick, “Japan’s economic expansion in the Netherlands Indies between the First and Second World Wars”, Journal of Southeast Asian Studies, 20 (1989), 244–72; Butcher, The Closing of the Frontier, chapter 5. 46 Teitler, Ambivalentie en Aarzeling, p.139, n.13. 47 Staatsblad van Nederlandsch-Indië (1935), no. 622. 48 V 5 May 1937, no.V10, and V 12 January 1938, no.Q1, AMK, inv. 2.10.36.51, nos. 491 and 510 (NA); Staatsblad van Nederlandsch-Indië (1937), no. 203 and no. 669. 49 H. Ferwerda to Governor-General, 18 March and 31 March 1938, V 2 May 1938, no.T14, AMK, inv. 2.10.36.51, no. 518 (NA). 50 Ferwerda to Governor-General, 22 August 1938, V 14 September 1938, no.K29, AMK, inv. 2.10.36.51. no. 528 (NA). 51 Staatsblad van Nederlandsch-Indië (1939), no. 442. The associated correspondence and explanatory memorandum are in V 13 September 1939, no.E37, AMK, inv. 2.19.36.51, no. 562 (NA). 52 J. R. Logan, “The ethnology of the Indian archipelago: embracing enquiries into the continental relations of the Indo-Pacific islanders”, Journal of the Indian Archipelago and Eastern Asia, 4 (1850), 254. 53 Letter to Mrs Abendanon, 27 October 1902, in E.M. Beekman, Fugitive Dreams: An Anthology of Dutch Colonial Literature (Amherst: University of Massachusetts Press, 1988), pp.275–77. 54 Douwes Dekker, “Onze helden: Tjipto Mangoenkoesoemo en R. R. Soewardi Soerjaningrat”, in E.F.E. Douwes Dekker, Tjipto Mangoenkoesoemo, and R. R. Soewardi Soerjaningrat, Onze Verbanning (Schiedam: Drukkerij De Toekomst, 1913), pp.78–79. 55 R.E. Elson, The Idea of Indonesia: A History (Cambridge: Cambridge University Press, 2008), pp.72–74. 56 A.B. Lapian, “Pengantar”, in I.G.P. Antariksa and Masyhuri Imron (eds), Hak Ulayat Laut di Kawasan Timur Indonesia (Yogyakarta: Penerbit Media Pressindo, 2000), p.vii.

442

NOTES TO PP. 43–50

57 Quoted in Resink, Indonesia’s History between the Myths, p.45. 58 “Jurisprudentie van de Zuidwestereilanden”, Adatrechtbundels, 25 (1926), 416. 59 Ch. O. van der Plas, “De visscherij en de vischhandel in den Kangean- en Sapoediarchipel”, Koloniaal Tijdschrift, 9 (1920), 630–31. 60 Soetan Sjahrir, Out of Exile, translated by Charles Wolf (New York: Greenwood Press, 1969 [1949]), p.44; Rudolf Mrázek, “Sjahrir at Boven Digoel: Reflections on exile in the Dutch East Indies”, in Daniel S. Lev and Ruth McVey (eds), Making Indonesia (Ithaca: Southeast Asia Program, Cornell University, 1996), pp.51–52. 61 Commander to Governor-General, 31 October 1939, V 8 January 1940, no.Y, AMK, inv. 2.10.36.51, no. 572 (NA). 62 Minister of Foreign Affairs to Minister of Colonies, 19 February 1940, V 28 February 1940, no.D13, AMK, inv. 2.10.36.51, no. 578 (NA).

Chapter 3 1 A.B. Kusuma, Lahirnya Undang-undang Dasar 1945: Memuat Salinan Dokumen Otentik Badan oentoek Menyelidiki Oesaha-2 Persiapan Kemerdekaan (Depok: Badan Penerbit Fakultas Hukum Universitas Indonesia, 2004), pp.157–58. Our account of the debate over Indonesia’s territory is largely based on Elson, The Idea of Indonesia, pp.105–9. 2 Kusuma, Lahirnya Undang-undang Dasar 1945, pp.253–55. 3 Muhammad Yamin, Naskah-persiapan Undang-undang Dasar 1945 (Jakarta: Jajasan Prapantja, 1959–60), vol.1, p.134. Although there are doubts about the authenticity of Yamin’s version of his speech on 31 May we have concluded that the Naskah-persiapan probably provides a reasonably accurate record of what he said about maritime jurisdiction on that occasion. 4 Commander of Navy to Commander of Sea Warfare Forces, 9 April 1947, in S.L. van der Wal, P.J. Drooglever, and M.J.B. Schouten (eds), Officiële Bescheiden betreffende de Nederlands-Indonesische Betrekkingen 1945–1950 (’s-Gravenhage: Instituut voor Nederlandse Geschiedenis, 1971–1996), vol.8, p.146. 5 Chief of Political Affairs to Minister of Foreign Affairs, 24 November 1947, in Van der Wal, Drooglever, and Schouten (eds), Officiële Bescheiden, vol.11, p.716. 6 Jusuf Sudono, Sejarah Perkembangan Angkatan Laut ([Jakarta]: Departemen Pertahanan Keamanan, Pusat Sedjarah ABRI, 1971), pp.50–51. 7 George McTurnan Kahin, The African-Asian Conference, Bandung, Indonesia, April 1955 (Ithaca: Cornell University Press, 1956), p.84. 8 Memorandum by the Legal Adviser (Phleger), 19 March 1953, FRUS, 1952–1954, vol. 1, part 2, General: Economic and Political Matters, document 279. 9 S. Whittemore Boggs, “National claims to adjacent seas”, Geographical Review, 41 (1951), 196–97. 10 Yearbook of the International Law Commission, 1956, vol. I, 169–70. As noted, Chile was the first to use the distance of 200 miles. In her detailed account of the South American claims Ann L. Hollick shows that that figure was the result of a misunderstanding by the Chileans of the width of the neutrality zone established by

NOTES TO PP. 50–56

11 12 13 14 15 16

17 18 19 20

21 22 23 24 25 26 27 28

29 30 31 32

443

American republics after the outbreak of World War II. U.S. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981), pp.77–79. “Fisheries case, Judgment of December 18th, 1951”, I.C.J. Reports (1951), p.143. C.H.M. Waldock, “The Anglo-Norwegian Fisheries case”, British Yearbook of International Law, 28 (1951), 114–71. Waldock, “The Anglo-Norwegian Fisheries case”, p.171. Quoted in Deputy Under-Secretary of State to Secretary of Defense, 28 March 1952, FRUS, 1952–1954, vol. 1, part 2, document 269. Dan A. Kimball, 22 June 1952, FRUS, 1952–1954, vol. 1, part 2, document 269, note 5. The full text of Kimball’s letter of 22 June 1952, 711.022/6–2252, CDF 1950–54, RG 59. The map itself is not enclosed in this file. Kimball also mentioned a map showing how the straight baselines could be applied to “the seas in the vicinity of the Netherlands East Indies” but without the map there is no way of knowing which seas he was referring to. G.D. Moore to R.G. Casey, 7 April 1952, A432, 1954/3522 Part 1 (NAA). Ministry of External Affairs, Wellington, 24 March 1953, A432, 1954/3522 Part 1. Legation of the Philippines, Sydney, 3 July 1953, A432, 1954/3522 Part 1. Philippines Legation, Sydney, to Ministry of External Affairs, Wellington, 13 November 1953, A432, 1954/3522 Part 1. In addition to the Treaty of Paris the statement referred to subsequent agreements that finalized the allocation of islands in the Sulu Sea, namely, “the treaty concluded between the United States and Spain on November 7, 1900, and the Agreement of January 2, 1930, between the United States and the United Kingdom, and the Convention of 6 July, 1932, between the United States and Great Britain”. Ministry of External Affairs to Philippines legation, 7 December 1953, A432, 1954/ 3522 Part 1. This was the advice of J. Plimsoll, 10 August 1953. A432, 1954/3522 Part 1. Boggs, “National claims to adjacent seas”, p.185. Third Secretary (R.R. Fernandez) to Minister, 18 September 1953, A11604, 606/3/2 (NAA). [J.C.G. Kevin] to Plimsoll, 7 November 1953, A11604, 606/3/2. Pedoman, 15 October 1953. Also Times of Indonesia, 16 October 1953. Both in A11604, 606/3/2. [J.C.G. Kevin] to Plimsoll, 7 November 1953. The foreign minister was Sunario. “For assistant secretary (G.R.)” [March 1954], A1838, 3034/10/4/1 (NAA). The memorandum was referring to a conversation that took place before the chargé d’affaires spoke with the foreign minister. R.G. Casey to W. McMahon, March 1954, A1838, 3034/10/4/1. Danusaputro, Tata Lautan Nusantara, pp.97, 131. “KSAL Subiakto ttg latihan perang Seato di laut Djawa”, Keng Po, 29 September 1956. “Minutes of the ANZUS Council meeting, Department of State, Washington, November 17, 1956”, FRUS, 1955–1957, vol. 21, East Asian Security; Cambodia; Laos, document 122.

444 33 34 35 36 37 38 39 40 41

42 43 44 45 46

47

48

49 50 51 52 53 54 55 56

NOTES TO PP. 56–65

“The SEATO riddle deepens”, Straits Times, 1 October 1956. “Minutes of the ANZUS Council meeting”. FRUS, 1955–1957, vol. 21, document 121 (editorial note). “KSAL Subiakto ttg latihan perang Seato di laut Djawa”. Antara, 17 October 1956, A1838, 3034/7/8 Part 1 (NAA). Danusaputro, Tata Lautan Nusantara, pp.131–32. Bernard G. Heinzen, “The three-mile limit: preserving the freedom of the seas”, Stanford Law Review, 11 (1958–59), 641–45. Evensen, “Certain legal aspects”, p.298. Evensen, “Certain legal aspects”, p.298. The system of straight baselines did not encompass certain outlying islands such as Grimsey, which is 40 kilometres from the main island. Yearbook of the International Law Commission, 1955, vol.II, pp.52–53. B. Watuseke, quoted in Antara, 6 November 1956, 756D.022/11–856, CDF 1955–59, box 3348, RG 59. Yearbook of the International Law Commission, 1956, vol.II. The articles start on p.256, the commentary on p.265. Yearbook of the International Law Commission, 1956, vol. I, pp.193–95. United Nations Conference on the Law of the Sea, Verbatim Record of the Debate in the Sixth Committee of the General Assembly, at the Eleventh Session, Relating to Agenda Item 53(a), 3 December 1957 (A/CONF.13/19), vol.1, pp.235–46. United Nations Conference on the Law of the Sea, Verbatim Record of the Debate in the Sixth Committee, vol.2, pp.366–71. Nugroho was at that time the minister counsellor in the Indonesian Embassy in Washington. We are grateful to Nugroho Wisnumurti (email message to Butcher, 18 February 2014) for helping us to make this identification. American Consul, Singapore, to Department of State, 13 July 1956, 756D.022/7–1356, CDF 1955–59 (box 3448), RG 59. The Indonesian government’s own estimate was that “one third of Indonesia's annual rubber production was being smuggled out of the country”. “R.I. move on smuggling”, Straits Times, 10 July 1956. American Embassy, Jakarta, “Growing uneasiness over intentions of the regions”, 5 November 1957, 756D.02/11–559, CDF 1955–59 (box 3448), RG 59. Konstituante Republik Indonesia, Risalah Perundingan, 1957, vol.5, p.60 [5 November 1957]. Konstituante, Risalah Perundingan, 1957, vol.5, p.63. Konstituante, Risalah Perundingan, 1957, vol.5, pp.84–85 [6 November 1957]. Konstituante, Risalah Perundingan, 1957, vol.5, p.88. Konstituante, Risalah Perundingan, 1957, vol.5, pp.123–25. Konstituante, Risalah Perundingan, 1957, vol.5, pp.221, 224 [7 November 1957]. Jakob Sumardjo, “Biografi Prof. Dr. Mochtar Kusumaatmadja, S.H., LL.M”, in Mieke Komar, Etty R. Agoes, and Eddy Damian (eds), Mochtar Kusumaatmadja, Pendidik & Negarawan: Kumpulan Karya Tulis Menghormati 70 Tahun Prof. Dr. Mochtar

NOTES TO PP. 65–69

57

58

59 60

61 62

63 64 65 66 67 68 69 70 71 72 73

445

Kusumaatmadja, S.H., LL.M. (Bandung: Alumni, 1999), p.12; William T. Burke, email message to Butcher, 22 June 2010. The Drenthe’s logbook is in Ministerie van Marine, Scheepsjournalen, inv. 2.12.03, no. 1179 (NA); “Rapport van verrichtingen over de periode van 31 augustus-30 September 1957 aan boord van Hr. Ms. ‘Groningen’”, 21 November 1957, AMD, inv. 2.13.115, no. 1805 (NA). Mochtar Kusumaatmadja, “Sekelumit pengalaman bersama Bung Chairul Saleh”, in Dra. Irna H.N. Soewito (ed.), Chairul Saleh: Tokoh Kontroversial ([Jakarta]: Tim Penulis, [1993]), p.177, and “Bersahaja, soleh, tenang, dan cerdas” (1993), in Awaloedin Djamin (ed.), Pelawan Nasional: Ir. H. Djuanda, Negarawan, Administrator, dan Teknokrat Utama (Jakarta: Penerbit Kompas, 2001), pp.338–39; Danusaputro, Tata Lautan Nusantara, pp.103–5. We are indebted to Adrian Lapian for calling our attention to Mochtar’s memoir of Chairul Saleh, which he quotes in “Lima puluh tahun wilayah Republik Indonesia”, paper presented at Dinamika Kemaritiman dalam Perspektif Sastra dan Sejarah, Seminar Internasional, Fakultas Sastra, Universitas Diponegoro, Semarang, 15 December 2007. Danusaputro, Tata Lautan Nusantara, p.105. Michael Leifer, Malacca, Singapore, and Indonesia (Alphen aan den Rijn: Sijthoff & Noordhoff, 1978), p.20. Leifer either interviewed or corresponded with Mochtar when researching his book. Leifer, Malacca, Singapore, and Indonesia, p.21. The Philippines’ note verbale had made no mention of drawing straight baselines between the outermost points of its outermost islands but it is clear from Danusaputro (Tata Lautan Nusantara, p.104) and a document written by Mochtar on 9 December (discussed below) that the officials dealing with the question of Indonesia’s maritime jurisdiction assumed that the inner edge of the Philippines’ “maritime territorial waters” would be delimited by such lines. Danusaputro, Tata Lautan Nusantara, p.100. See also pp.101, 104, and 125. “ALRI tak berdaja hadapi kapal2 asing”, Suluh Indonesia, 21 October 1957. Also “ALRI sulit menghadapi penjelundup2 legal”, Suluh Indonesia, 22 October 1957. American consul, Singapore, to Department of State, 13 July 1956. The consul’s source was secret reports compiled by the Royal Navy. Leifer, Malacca, Singapore, and Indonesia, p.20. See also Danusaputro, Tata Lautan Nusantara, p.125. The following is based on Danusaputro, Tata Lautan Nusantara, pp.99–100. The Indonesian is “RUU Wilayah Perairan Indonesia dan Lingkungan Maritim”. Danusaputro, Tata Lautan Nusantara, p.101. Danusaputro, Tata Lautan Nusantara, p.101, quoting from the committee’s report. Daniel S. Lev, The Transition to Guided Democracy: Indonesian Politics, 1957–1959 (Ithaca: Modern Indonesia Project, Cornell University, 1966), p.35. Lev, Transition to Guided Democracy, p.33. “H. Ms. ‘Evertsen’ naar Nieuw-Guinea”, De Tijd, 3 December 1957 (http://www.delpher.nl); “‘Evertsen’ naar Irian”, De Waarheid, 4 December 1957

446

NOTES TO PP. 69–75

(http://www.delpher.nl); “Kapal perang Belanda dilaut Djawa” and “Belanda akan kirim kapal perusak lagi”, Keng Po, 8 December 1957; “Red-led Indonesians grab Dutch banks”, Straits Times, 8 December 1957 (for quotes). 74 Ambassador Allison to Washington, 14 December 1957, FRUS, 1955–1957, vol. 22, Southeast Asia, document 324. 75 “Penjelasan mengenai proklamasi wilayah perairan Indonesia”, in Danusaputro, Tata Lautan Nusantara, pp.140–46. The document is unsigned, but all the evidence points conclusively to Mochtar as the author. He was the only official working on this approach to Indonesia’s maritime claims, he borrowed heavily from this document in a talk he gave late in December 1957, and Danusaputro obtained the document from Mochtar’s private papers. 76 Kusumaatmadja, Bunga Rampai, p.27, n.3. This footnote is the clearest statement we have found concerning Mochtar’s part in drafting the declaration. 77 “Wilajah perairan negara R.I., seluruh laut diantara pulau2”, Keng Po, 14 December 1957, and “Ketentuan wilajah perairan Indonesia telah dinjatakan resmi”, Merdeka, 16 December 1957. 78 Danusaputro, Tata Lautan Nusantara, p.105. Danusaputro’s source was Goesti Moh. Charidji Koesoema, a fisheries official and member of the interdepartmental committee who listened to the debate that night. 79 Kusumaatmadja, “Sekelumit pengalaman bersama Bung Chairul Saleh”, pp.180–81. 80 Kusumaatmadja, “Bersahaja, soleh, tenang, dan cerdas”, p.339. 81 This account is based on Danusaputro, Tata Lautan Nusantara, pp.105–7. 82 Danusaputro uses the term tata lautan, which can be translated as “seas regime” or “disposition of the seas” but which we have taken in this context as referring to the nature and extent of maritime jurisdiction. 83 It is unlikely Djuanda used this term, since claims such as Indonesia’s were not seen as being based on some “principle” until the Geneva conference at the earliest. 84 Danusaputro, Tata Lautan Nusantara, p.136, includes a draft that he obtained from Mochtar’s private papers but does not indicate whether this was the draft that went to cabinet. 85 Meeting with Mochtar Kusumaatmadja and Hasjim Djalal at Professor Mochtar’s law firm, Jakarta, 10 August 2011. 86 There are a number of versions of this announcement. Here we have translated the Indonesian text that appeared in Keng Po on 14 December 1957. Soon after releasing the Indonesian text that we have used the government prepared an English version that it then circulated to foreign governments (American Consul, Singapore, to Department of State, 16 January 1958, 756D.022/1–1658, CDF 1955–59, RG 59). All but a few sentences of that version appear in Marjorie M. Whiteman (ed.), Digest of International Law (Washington, DC: Government Printing Office, 1965), vol.4, p.284. 87 Kusumaatmadja, “Supplementary remarks”, in Lewis M. Alexander (ed.), The Law of the Sea: Needs and Interests of Developing Countries: Proceedings of the Seventh Annual

NOTES TO PP. 75–79

88 89 90 91 92 93

447

Conference of the Law of the Sea Institute, June 26–29, 1972, at the University of Rhode Island, Kingston, Rhode Island (Kingston: University of Rhode Island, 1973), p.176. Kusumaatmadja, “Supplementary remarks”, p.176. “Apa artinja putusan kabinet untuk merobah undang2 tentang perairan territorial?”, Keng Po, 14 December 1957. “Mempertegas perairan kita”, Suluh Indonesia, 17 December 1957. J.M. McMillan, counsellor, Australian Embassy, Jakarta, to Department of External Affairs, 18 December 1957, A1838, 696/2/5 Part 1 (NAA). “Ketentuan wilajah perairan Indonesia”. “Wilayah perairan Indonesia”, in Kusumaatmadja, Bunga Rampai, pp.3–8. Quote on p.8.

Chapter 4 1 The statement is attached to Ministerie van Buitenlandse Zaken, “Indonesische wateren”, 18 December 1957, Buza 176415–7963, in P.J. Drooglever and M.J.B. Schouten, Nederlands-Indonesische Betrekkingen 1950–1963 (Den Haag: Huygens Instituut voor Nederlandse Geschiedenis, 2006). (http://resources.huygens.knaw.nl/ indonesischebetrekkingen1945–1969/ Nederlands-indonesischeBetrekkingen1950–1963). 2 Burke to Deputy Under-Secretary of State, Robert Murphy, 27 December 1957, 756D.022/12–2757, CDF 1955–1959, box 3448, RG 59. 3 Australian Embassy, Washington, to Canberra, 18 December 1957, A1838, 696/2/5 Part 1. 4 The note, dated 30 December 1957, is in RG 84, entry UD2727, box 82 (NARA). The note was delivered on 31 December. That is the date on copies of the note in AMBZ, inv. 2.05.118, no. 3394 (NA) and A1838, 3034/7/8 Part 1 (NAA). 5 The UK note, dated 3 January 1958, is in A1838, 3034/7/8 part 1. On 4 January the Times reported that the note had been handed to the Indonesian ambassador the previous day. In Jakarta Suluh Indonesia reported on the protest note on 7 January. 6 The note, dated 16 January 1958, is in AMBZ, inv. 2.05.118, no. 3394. 7 Ambassador K.C.O. Shann to Canberra, 3 January 1958, A1838, 3034/7/8 Part 1. 8 [Charles] Bohlen to Secretary of State, 7 January 1958, 756D.022/1–758, CDF 1955–1959, box 3448, RG 59. 9 Bohlen to Secretary of State, 9 January 1958, 756D.022/1–958, CDF 1955–1959, box 3448, RG 59. 10 Australian Embassy, Manila, to Canberra, 17 January 1958, A432, 1957/3145 (NAA). 11 R.M. Neuerburg, 23 January 1958, AMBZ, inv. 2.05.118, no. 3438 (NA). 12 Netherlands ambassador to Pakistan, 24 January 1958, AMBZ 1955–1964, inv. 2.05.118, no. 3438; “Indonesian claim to an extended area of territorial waters”, p.6, A1838, 3034/7/8 Part 1. 13 Australian High Commission, Kuala Lumpur, 7 March 1958 (I.3996), A1838, 696/2/5 Part 1.

448

NOTES TO PP. 79–84

14 Bangkok to Washington, 16 January 1958, 756D.022/1–1658, CDF 1955–1959, RG 59. We have no source confirming that the Thai government informed the Indonesian government as it said it would. 15 Whiteman (ed.), Digest of International Law, vol.4, p.285. The letter is also in AMBZ, inv. 2.05.118, no. 3394. 16 Tokyo to Washington, 15 January 1958, 756D.022/1–1558, CDF 1955–1959, RG 59. 17 “British enterprises safe”, Times, 19 December 1958. 18 PIA, 20 December 1957, reported in Hasselman to The Hague, 20 December 1957, AMBZ 1955–1964, inv. 2.05.118, no. 3438. 19 Memorandum, 8 January 1958, AMBZ 1955–1964, inv. 2.05.118, no. 3438. 20 “Jakarta sea plan is scored by U.S.”, New York Times, 18 January 1958; “Claim Ind. akan memblokir SEATO; Amerika Serikat protes”, Merdeka, 20 January 1958. 21 Kusumaatmadja, “Sekelumit pengalaman bersama Bung Chairul Saleh”, p.181. 22 Kusumaatmadja, “Supplementary remarks”, p.176. 23 Jakarta (Allison) to Secretary of State, 28 January 1958, 756D.022/1–2858, CDF 1955–1959, box 3448, RG 59. This report refers to “interdepartmental committee now studying problems arising from Indonesia’s claim”. It is possible that this body was the same committee set up by Ali in 1956 but this is not clear from the report. 24 Antara, 24 February 1958, quoted in Hasselman telegram of 25 February 1958, AMBZ 1955–1964, inv. 2.05.118, no. 3438. Using almost identical wording, the ministry also delivered formal responses to at least some of those states that had lodged protests: Suwito Kusumowidagdo, secretary-general, Ministry of Foreign Affairs, to S.J. Cottrell, chargé d’affaires, US Embassy, Jakarta, 22 February 1958, RG 84, entry UD2727, box 82, and reply to New Zealand, 25 February 1958, A1838, 3034/7/8 Part 2 (NAA). 25 According to a British source, Italy, Spain, and Portugal also submitted protests. “Brief on the Indonesian claim”, FO 371/141821 (UKNA). 26 Moscow to Secretary of State, telegram, 13 February 1958, 756D.022/2–1358, CDF 1955–1959, RG 59, box 3448. 27 B.J. Slingenberg, Peking, 16 January 1958, no. 93/41, AMBZ, inv. 2.05.118, no. 3438. 28 Kusumaatmadja, Bunga Rampai, p.29. 29 “Kekonf. Hukum Laut”, Suluh Indonesia, 19 December 1957. 30 Kusumaatmadja, Bunga Rampai, p.12. The terms Mochtar used were konsep archipel and prinsip archipel. 31 This assertion comes from the text accompanying a slide show to be shown by US embassies in certain countries in the lead-up to the conference. “9E Subject files: instructions—to and from field”, RG 59, Entry 5465-A, UN Conference on the Law of the Sea, Geneva, 1958, box 1067. While not necessarily disagreeing with the principles underpinning the text, some State Department officials balked at the thought of presenting such a stark and evidently self-serving statement of the US position to representatives of foreign governments. 32 See generally the material in RG 59, Entry 5465-A.

NOTES TO PP. 84–93

449

33 “9 UN Conference on the Law of the Sea, 1958: 1. Biographical Information”, in RG 59, entry 5465-A, box 1060. 34 The full statement is in AMBZ, inv. 2.05.118, no. 3394, and summary record in UNCLOS I, Official Records, vol.3, pp.14–15 (7 March 1958). 35 The full statement is in AMBZ, inv. 2.05.118, no. 3394, and summary record in UNCLOS I, Official Records, vol.3, pp.25–27 (11 March 1958). 36 The full statement is in AMBZ 1955–1964, inv. 2.05.118, no. 3438, and summary record in UNCLOS I, Official Records, vol.3, pp.43–44 (14 March 1958). 37 Paul W. Meyer, memorandum of conversation with Mochtar Kusumaatmadja, 8 April 1958, RG 59, Entry 5465-A, box 1067 (file: “9E Subject Files: Memos of Conversation”). 38 “The Indonesian delegation to the Conference on the Law of the Sea”, in Danusaputro, Tata Lautan Nusantara, pp.156–61. Copies of this document are also in several archives, including AMBZ, inv. 2.05.118, no. 3394. According to Danusaputro, who was at the time the cultural attaché in the Indonesian Embassy in Bern as well as a member of the delegation, he was himself the author of this document. Wawasan Nusantara, vol.2, p.63. 39 UNCLOS I, Official Records, vol.3, p.67 (11 March 1958). 40 UNCLOS I, Official Records, vol.3, p.239. 41 UNCLOS I, Official Records, vol.3, p.227. 42 Kusumaatmadja, Bunga Rampai, p.15. The term Mochtar used when relating this episode was prinsip kepulauan. 43 Meyer, memorandum of conversation with Mochtar Kusumaatmadja. 44 Evensen, “Certain legal aspects”. 45 UNCLOS I, Official Records, vol.3, p.161–63. 46 Kusumaatmadja, Bunga Rampai, p.15. The draft resolution is on p.22. 47 UNCLOS I, Official Records, vol.3, pp.153 (Dean) (16 April 1958) and 163 (Sir Reginald Manningham-Buller) (18 April 1958). 48 UNCLOS I, Official Records, vol.3, pp.93–95. 49 UNCLOS I, Official Records, vol.3, p.259; vol.2, p.124. 50 The incident, which took place on 21 February, is recorded in the Drenthe’s logbook in Ministerie van Marine, Scheepsjournalen, inv. 2.12.03, no. 1179. The KPM vessel, the Kasimbar, had a special significance for Indonesians. It had been at sea at the time of the Indonesian takeover of Dutch businesses but its Indonesian crew had prevented its captain from sailing it to Singapore. “Kapal ‘Kasimbar’ di ‘brontak’ anak buahnja”, Merdeka, 11 December 1957. 51 Antara, 26 February 1958, quoted in Hasselman, 27 February 1958, AMBZ, inv. 2.05.118, no. 3438. For more on the Indonesian reaction to what the government regarded as an act of “piracy” see “A constant menace to a people’s security, freedom and sovereignty”, Indonesian Spectator, 15 March 1958. 52 UNCLOS I, Official Records, vol.3, pp.127–131, 219, 224, 225. 53 UNCLOS I, Official Records, vol.2, pp.35–40, 125, 126, 128.

450

NOTES TO PP. 93–99

54 UNCLOS I, Official Records, vol. 2, p.38 (quoting USSR delegate). 55 UNCLOS I, Official Records, vol.2, pp.40, 117. 56 UNCLOS I, Official Records, vol.2, pp.62–63. The Philippines had abstained in the vote on the US proposal concerning the width of the territorial sea for the same reason. UNCLOS I, Official Records, vol.2, p.42. 57 There had been no roll call in this vote; 54 delegations voted in favour of this provision, five voted against it, and eight abstained. UNCLOS I, Official Records, vol.3, p.131. 58 Myres S. McDougal and William T. Burke, The Public Order of the Oceans: a Contemporary International Law of the Sea (New Haven: Yale University Press, 1962), p.218. 59 UNCLOS I, Official Records, vol.2, pp.66–68 (27 April 1958). 60 Convention on the Territorial Sea and the Contiguous Zone, article 23. Except for an editorial change this provision was taken directly from article 25 of the ILC’s draft articles. 61 Kusumaatmadja, Bunga Rampai, p.18. 62 The texts of all four conventions may be found at: http://untreaty.un.org/cod/avl/ha/ gclos/gclos.html. 63 UNCLOS I, Official Records, vol.2, pp.77–78 (27 April 1958). 64 Arthur H. Dean, “Freedom of the seas”, Foreign Affairs, 37 (1958–59), 88, referring to the Philippines as well as Indonesia. 65 Meyer, memorandum of conversation with Mochtar Kusumaatmadja; UNCLOS I, Official Records, vol.3, p.95 (Dean). 66 Churchill and Lowe, The Law of the Sea, p.104, discussing article 16(4). 67 UNCLOS I, Official Records, vol.7, p.11 (14 March 1958). 68 Ruth Bacon to Robertson, 30 April 1958, RG 59, Bureau of Far Eastern Affairs, 1956–58, box 6. 69 UNCLOS I, Official Records, vol. 2, p.62. 70 UNCLOS I, Official Records, vol. 2, p.75. 71 Danusaputro, Tata Lautan Nusantara, p.123. The Philippines signed none of the conventions.

Chapter 5 1 2 3 4

Kusumaatmadja, Bunga Rampai, pp.30–31, makes this point. Danusaputro, Tata Lautan Nusantara, p.124. Danusaputro, Tata Lautan Nusantara, p.124. Danusaputro, Tata Lautan Nusantara, p.125; Kusumaatmadja, Bunga Rampai, pp.31–32. 5 Danusaputro, Tata Lautan Nusantara, p.124. 6 “Twelve mile territorial water limit appropriate & defensible”, Antara, 30 December 1958, A1838, 3034/7/8 Part 2; Kusumaatmadja, Bunga Rampai, pp.9–23. 7 External Affairs Office, London, to Canberra, 12 September 1958, A1838, 3034/7/8 Part 2.

NOTES TO PP. 93–103

451

8 UNGA, Official Records, 13th Session, Sixth Committee, Summary Records of Meetings, 588th meeting, 25 November 1958 (A/C.6/SR.588), pp.189–90; “P.I.-Indon parallel views on sea limits”, 26 November 1958 (UPI/PIA), A1838, 3034/7/8 Part 2. 9 The various decrees are in CDF 1955–1959, box 3448, RG 59; US Consulate General and Embassy, Jakarta, General Records, 1936–1963 (entry: UD 2727), box 82, RG 84; Antara, 3 June 1958, quoted in Hasselman, telegram, 4 June 1958, AMBZ, inv. 2.05.118, no. 3394; and FO 371/133778 (UKNA). See also Whiteman (ed.), Digest of International Law, vol.4, pp.385–86. 10 W.T. Wright, 12 July 1958, in FO 371/133778. 11 H.D. Anderson, 18 May 1959, A1838, 696/2/5 Part 1. 12 David M. Cooney, A Chronology of the U.S. Navy: 1775–1965 (New York: Franklin Watts, 1965), p.441. We were unable to locate documents regarding this transit in NARA but presumably they exist either there or in some other archive. Cooney had access to the Navy Operational Archives. 13 “Australian practice”, A1838, 696/2/5 Part 1. 14 McIntyre to Canberra, 2 April 1959, A1838, 3034/7/8 Part 2. 15 McIntyre to Department of External Affairs, 1 May 1959, A1838, 696/2/5 Part 1. 16 L.R. McIntyre, memorandum of conversation with Suwito Kusumowidagdo, 1 June 1959, A1838, 696/2/5 Part 1. 17 Howard Palfrey Jones, Indonesia: The Possible Dream (New York: Harcourt Brace Jovanovich, 1971), p.436. 18 Intelligence report, 29 September 1959, A1838, 3034/7/8 Part 2. Subandrio made it clear he was not offering any promise that this would happen. 19 Subardjo to Mochtar, 26 June 1959, in Danusaputro, Tata Lautan Nusantara, p.162. 20 Jakarta to Secretary of State, 25 June 1959 (756D.551/6–2559) and 13 July 1959 (756D.551/7–1559), CDF 1955–1959, box 3453, RG 59. 21 Danusaputro, Tata Lautan Indonesia, p.125. 22 Danusaputro, Tata Lautan Indonesia, p.125. 23 Danusaputro, Wawasan Nusantara, vol.2, p.42. 24 London to Department of External Affairs, 24 September 1959, A1838, 3034/7/8 Part 2. The formal order from the Indonesian navy stipulated a sea route that Dutch vessels would be allowed to pass along. Whiteman (ed.), Digest of International Law, vol.4, p.386. 25 Intelligence report, 29 September 1959, A1838, 3034/7/8 Part 2. 26 “Cabinet session”, 14 November 1959 (PIA), FO 371/152480 (UKNA). This report refers cryptically to a draft law on “Indonesia’s territorial waters limitation” and another on “the maritime territory of the Republic”, noting that cabinet approved the first and that the government would study the second. It is possible that at this stage there were two separate draft laws, one on the width of the territorial sea and another on the drawing of the straight baselines from which the territorial sea would be measured. If so, the two were amalgamated into a single draft law before the end of the year.

452

NOTES TO PP. 103–6

27 “Indonesia to repeat its territorial water fights limit at Geneva”, Antara, 20 November 1959, FO 371/152480. 28 The remainder of this paragraph and the following paragraph are based on Danusaputro, Tata Lautan Nusantara, pp.125–26, as well as the other sources cited. 29 Mochtar Kusumaatmadja to Ketua Panitia Interdep, 1 January 1960, in Danusaputro, Tata Lautan Nusantara, pp.164–69. 30 Unlike article 5(3) of the draft convention article 5(2) of the convention adopted at Geneva provided for the right of innocent passage throughout internal waters that had previously had the status of high seas or territorial sea, not just in those waters that had been used for international navigation. 31 “Indonesia to repeat its territorial water fights limit at Geneva”, 15 January 1960 (PIA), FO 371/152480. 32 Danusaputro, Tata Lautan Nusantara, p.126, gives 21 January as the date of the final meeting but since cabinet met on 20 January the committee must have finished its work by 19 January at the latest. 33 Peraturan Pemerintah Pengganti Undang-Undang (Perpu). 34 Quoted in British Embassy, Jakarta, to FO, 9 February 1960, FO 371/152480. Also referred to in “Indonesia’s position on question of extent of territorial waters”, 29 January 1960, Records of the Foreign Service Posts of the Department of State, Indonesia, U.S. Consulate General and Embassy, Jakarta, General Records, 1936–1963 (entry UD 2727), box 88, RG 84. 35 “Background information”, Bureau of Far Eastern Affairs 1960–1963, box 3, RG 59. 36 Jones to Henderson and Lee, 18 January 1960, and Jones to Subandrio, 27 January 1960, U.S. Consulate General and Embassy, Jakarta, General Records, 1936–1963, box 88. 37 Australian Embassy, Washington, to Canberra, 18 March 1960 (I.5999), A1838, 3034/ 7/8 Part 2. This was the embassy’s wording. 38 British Embassy, Jakarta, to FO, 9 February 1960. 39 Ruth Bacon to Parsons, 23 February 1960, Bureau of Far Eastern Affairs 1960–1963, box 3, RG 59. 40 “Summary of paper given to Dr. Subandrio by U.S. Ambassador on Law of the Sea”, FO 371/152480. 41 Australian Embassy, Washington, to Canberra, 18 March 1960. 42 British Embassy, Jakarta, to FO, 9 February 1960. 43 Bailey (London) to Canberra, 15 March 1960 (I.5634), A1838, 3034/7/8 Part 2. 44 British Embassy, Jakarta, to FO, 9 February 1960. 45 We quote from the following English version: “Indonesia: Act No.4 of 18 February 1960”, Second United Nations Conference on the Law of the Sea (A/CONF.19/5/Add.1), 4 April 1960. For the Indonesian version of the regulation see Danusaputro, Tata Lautan Nusantara, pp.171–73, and Kusumaatmadja, Bunga Rampai, pp.277–79. 46 The Indonesian is kelonggaran, which English versions of the explanatory note including those issued by the Indonesian government translate as “facility” but which is better glossed as “concession”.

NOTES TO PP. 106–10

453

47 “Article by article clarification”, attached to Chancery, Jakarta, to South East Asia Department, FO, 14 March 1960, in FO 371/152480. Emphasis added. The Indonesian government later issued a much longer explanatory note (in English as well as Indonesian) that made the same point. The full Indonesian version is in Danusaputro, Tata Lautan Nusantara, pp.180–83, and Kusumaatmadja, Bunga Rampai, pp.280–85, while the full English version is in Department of Information, Republic of Indonesia, “The boundaries of the territorial waters of the Republic of Indonesia”, Special Issue 63 [1960], a copy of which is in FO 371/152480. 48 The reference to “a single submarine platform” appears to have been an attempt to differentiate the Philippines from Indonesia. 49 UNCLOS II, Official Records, Committee of the Whole—Verbatim Records of the General Debate, pp.70–77. 50 UNCLOS II, Official Records, Committee of the Whole—Verbatim Records of the General Debate, pp.266–68. 51 UNCLOS II, Official Records, Committee of the Whole—Verbatim Records of the General Debate, pp.43–51. 52 These points regarding US strategic interests come from “Law of the Sea: basic security reasons why US supports the retention of a narrow territorial sea under international law”, Department of State Instruction, 1 March 1960, in US Delegation to the Second UN Conference on the Law of the Sea, Geneva, Switzerland, March 17, 1960, RG 43 (entry 5536), box 136. 53 “Position paper” (US/2ndCLS/S.POS/13), 11 March 1960, in RG 43 (entry 5536), box 136. 54 A/CONF.19/C.1/L.2/Rev.1, 11 April 1960, UNCLOS II, Official Records, Summary Records…Annexes and Final Act, pp.165–66. 55 “Indonesia remains on its stand on territorial waters”, 16 April 1960 (PIA), in A1838, 3034/7/8 Part 2. The spokesman was Ganis Harsono. 56 A/CONF.19/L.9, 22 April 1960, UNCLOS II, Official Records, Summary Records, p.172. 57 Arthur H. Dean, “The Second Geneva Conference on the Law of the Sea: the fight for freedom of the seas”, American Journal of International Law, 54 (1960), 776. 58 UNCLOS II, Official Records, Summary Records, p.36. For the dramas of the final day see pp.27–36. 59 The note is in A1838, 3034/7/8 Part 2. 60 A.H. Tange, Secretary, to the Minister for External Affairs, 6 April 1960, and D.G. Nutter to Moodie, 16 September 1960, A1838, 696/2/5 Part 2 (NAA). 61 D.F. McDermott, minute of 12 April 1960, and Foreign Office to Chancery, 20 April 1960, FO 371/152480. The protest note, dated 7 April, is in the same file. 62 D.F. McDermott, minute of 12 April 1960. The ambassador was Sunario, a previous foreign minister. 63 The Philippines, apparently contrary to Dean’s expectation of support, abstained. Ruth Bacon to Parsons, 29 April 1960, Bureau of Far Eastern Affairs 1960–1963, box 3, RG 59.

454

NOTES TO PP. 110–18

64 “Indonesia: Act No. 4 of 18 February 1960”, A/CONF.19/5/Add.1 (4 April 1960). 65 Except for a small gap to the north of Timor, where Portuguese sovereignty over the eastern half of the island and the enclave of Oecussi on the north coast of the western half complicated the drawing of straight baselines. 66 “New Jakarta claim”, The Times, 16 December 1957, p.8. 67 Geographer, U.S. Department of State, “Straight Baselines: Indonesia”, Limits in the Seas, no. 35 (1971), pp.9, 11. 68 Interview by Butcher and Elson, Jakarta, 22 November 2008. 69 Staples, minute, 28 April 1960, FO 371/283825. 70 Geographer, “Straight Baselines: Indonesia”, p.9. 71 The following is mainly based on two sources. The first is information kindly supplied by Adi Sumardiman, with whom we corresponded on several occasions in late 2008. Admiral Sumardiman joined the Hydrographic Office in 1962 but had already been working in the office while studying geodetic engineering at the Bandung Institute of Technology. The second source is the base map prepared by Mas Pardi, presented to cabinet, and used for drawing the map finally circulated at Geneva. We are grateful to Etty Agoes for enabling us to obtain a full-sized reproduction of the base map from the Mochtar Kusumaatmadja Law Library at Padjadjaran University; the chief librarian, Susi Dwi Harijanti, for making the reproduction; and Professor Colin Brown for discussing the map with Professor Agoes and completing arrangements with Dr Susi. The map had been part of Professor Mochtar’s personal collection before he donated it to the library. 72 One-tenth of a minute of latitude is equal to about 185 metres. One-tenth of a minute of longitude is equal to about 185 metres at the equator but less and less the greater the distance north or south until it is equal to 0.0 metres at the poles.

Chapter 6 1 “KSAL Martadinata: ALRI djaga keutuhan Wilajah RI”, Merdeka, 30 April 1960, p.1. 2 “ALRI adakan latihan di Indonesia bagian timur”, Merdeka, 14 May 1960, p.1. 3 Henderson to Department of State, 14 April 1960, in FRUS, 1958–1960, vol.17, Indonesia, document 247. 4 P.J. Drooglever, Een Daad van Vrije Keuze: De Papoea’s van Westerlijk Nieuw-Guinea en de Grenzen van het Zelfbeschikkingsrecht (Amsterdam: Boom, 2005), pp.369–71; “The high seas: flying Dutchman”, Time, 19 September 1960 (www.time.com). 5 Chadbourn to McBride and Kohler, 7 July 1960, 756C.00/7–760, CDF 1960–1963, box 1837, RG 59 (NARA). 6 Presidential Regulation no. 19 of 1960, 30 August 1960. The full text is in Danusaputro, Wawasan Nusantara, vol.2, pp.44–46. 7 Surjo Ardikusumo to President Sukarno, 4 April 1957, Kab. Pres. No.1436 (ANRI); Hasjim Djalal, email message to Butcher, 29 March 2011. 8 Hasjim Djalal, “Kenang-kenangan untuk Prof. Dr. Mochtar Kusumaatmadja, S.H., LL.M.”, in Komar, Agoes, and Damian (eds), Mochtar Kusumaatmadja, Pendidik & Negarawan, pp.90–91.

NOTES TO PP. 118–21

455

9 Hasjim Djalal, interview by Butcher and Elson, Jakarta, 12 November 2008. 10 Djalal, “The limit of territorial waters in international law”, unpublished PhD dissertation, University of Virginia, September 1960, p.440. 11 Djalal, “Kenang-kenangan”, p.92. 12 Danusaputro, Tata Lautan Nusantara, p.125. 13 Djalal, Perjuangan, pp. 38 and 43; Danusaputro, Wawasan Nusantara, vol.2, pp.47–48. 14 “Convention on the High Seas”, United Nations, Treaty Series, vol.450 (1963), pp.163–64 (Indonesia), 166 (UK), 167 (US). Also objecting to Indonesia’s reservation was Madagascar (p.165). 15 Interview by Butcher and Elson, Jakarta, 12 November 2008; email message to Butcher, 25 April 2014. 16 Sukarno, “Komando Rakjat”, Merdeka, 20 December 1961. 17 Danusaputro, Tata Lautan Nusantara, p.188 (“changes as needed”), and Wawasan Nusantara, vol.2, p.48. Danusaputro, who had access to the legal committee’s files (Tata Lautan Nusantara, p.187, n.214), says nothing about what debates took place within the committee or what changes cabinet may have made. We have no information on whether the files still exist. 18 Danusaputro, Wawasan Nusantara, vol.2, p.51. 19 Memorandum of conversation with E.N. Larmour, British High Commission, Canberra, 5 February 1962, A1838, 696/2/5 Part 2. 20 K.G. Brennan to the Secretary, 21 February 1962, A1838, 696/2/5 Part 2. This is folio 209 in the file. 21 F.R. Dalrymple to Department of External Affairs, 19 September 1962, A1838, 696/2/ 5 Part 2. 22 Keith Brennan to Australian Embassy, Jakarta, 23 May 1962, A1838, 696/2/5 Part 2. 23 Sudono, Sejarah Perkembangan Angkatan Laut, pp.165, 180–181. On the Indonesian navy during this period see Alexey Muraviev and Colin Brown, “Strategic realignment or déjà vu? Russia-Indonesia defence cooperation in the twenty-first century”, Strategic & Defence Studies Centre, Australian National University, Working Paper no. 411, November 2008, pp.5–7; James Goldrick and Jack McCaffrie, Navies of South-East Asia: A Comparative Study (London and New York: Routledge, 2013), pp.65–72; and Dino Patti Djalal, Geopolitics, pp.50–51. 24 For texts of both the regulation and the accompanying explanatory note see Kusumaatmadja, Bunga Rampai, pp.292–301, and Danusaputro, Tata Lautan Nusantara, pp.249–52. The two documents must be read together, since the explanatory note contains important details that are not in the regulation itself. 25 The Indonesian is lalu lintas laut damai, literally meaning “peaceful sea passage” but very clearly used by this time to mean “innocent passage”. 26 Floyd L. Whittington to Department of State, 10 April 1963, in “POL 33 Waters, boundaries. Indon, 2/1/63”, Central Policy Files, 1963, box 3939, RG 59. 27 A1838, 696/2/5 Part 2, folio 263.

456

NOTES TO PP. 121–25

28 “R.A.N. vessels: movements through waters claimed by Indonesian Government”, 30 July 1964, A1838, TS696/2/5 Part 3 (NAA). 29 G.N. Upton to Canberra, 20 February 1963, A1838, 696/2/5 Part 2. 30 E.N. Larmour, British High Commission, Canberra, to J.F. Nimmo, Prime Minister’s Department, Canberra, 21 May 1963, and accompanying “Note”, A1838, 696/2/5 Part 2. 31 Danusaputro, Wawasan Nusantara, vol.2, p.48. The text of the decision is in A. Hamzah, Laut, Teritorial dan Perairan Indonesia: Himpunan Ordonansi, Undang-undang dan Peraturan Lainnya (Jakarta: Akademika Pressindo, 1988), pp.168–69. 32 Staatsblad van Nederlandsch-Indië (1939), no. 442, articles 9(1)(b), 8(1), and 9(2). 33 Danusaputro, Wawasan Nusantara, vol.2, p.48, describes the decision as “the second overturning and simplification” of the Territorial Sea and Maritime Districts Ordinance. It certainly simplified the ordinance but far from overturning the ordinance it represented its ultimate application. 34 Jakob Sumardjo, “Biografi Prof. Dr. Mochtar Kusumaatmadja, S.H., LL.M”, in Komar, Agoes, and Damian (eds), Mochtar Kusumaatmadja, Pendidik & Negarawan, pp.7–9, and, in the same volume, Djalal, “Kenang-kenangan”, pp.92–94, 96–97. 35 Djalal, email message to Butcher, 25 April 2014. 36 Djalal, email message to Butcher, 22 May 2014. 37 [K.C.O.] Shann to Canberra, 25 September 1963, A1838, TS696/2/5 Part 3. 38 M.C. Ricklefs, A History of Modern Indonesia since c.1200, 3rd edition (Houndmills: Palgrave, 2001), pp.330–31. 39 “R.A.N. vessels: movements”. The compiler of this document had information on all northbound passages but only some of the southbound passages. 40 J.L. Simpson (FO) to W. Marshall (Ministry of Defence), 5 June 1964 (emphasis added), and Ministry of Defence to Simpson, 12 June 1964, FO 371/175296 (UKNA). 41 Harold Crouch, The Army and Politics in Indonesia, revised edition (Ithaca and London: Cornell University Press, 1988), pp.61–62. 42 In addition to the specific sources cited the following account is based generally on FO 371/175296; [David] Bruce (London) to Washington, telegram, 11 September 1964, Central Foreign Policy Files, 1964–1966, Political and Defense, box 2323, RG 59; and Toh Boon Kwan, “Brinkmanship and deterrence success during the Anglo-Indonesian Sunda Straits crisis, 1964–1966”, Journal of Southeast Asian Studies, 36 (2005), 399–417. We are extremely grateful to Toh Boon Kwan for supplying us with his detailed notes on documents he consulted in the UK National Archives. 43 Commander-in-Chief Far East to Ministry of Defence, 13 August 1964, FO 371/ 175296. 44 W. Marshall (MOD) to W.K.K. White (FO), 14 August 1964, FO 371/175296. 45 It was later established that there had in fact been only one clash, involving a single US destroyer. 46 Oliver to Foreign Office, 28 August 1964 (no. 1384), and Oliver to Suwito, 28 August 1964, FO 371/175296.

NOTES TO PP. 125–32

457

47 Oliver to Foreign Office, 2 September 1964 (no. 1398), FO 371/175296. The Australian ambassador, K.C.O. Shann, reported the incident in a dispatch to Canberra, 2 September 1964 (I.28740), A1838, TS696/2/5 Part 3. 48 Oliver to FO, 5 September 1964 (no. 1418), FO 371/175296. 49 CINCPAC to Department of State, 4 September 1964, Central Policy Files, 1964–1966, Political and Defense, box 2323, RG 59. 50 D.A. Greenhill, British Embassy, Washington, to Bernard Burrows, 7 September 1964, FO 371/175296. 51 For some reason Oliver’s report (no. 1450 of 10 September) of this conversation with Suwito is not in FO 371/175296 as copied for us by the UK National Archives. 52 This assurance is referred to in Foreign Office to Washington, 11 September 1964 (no. 11096), and Eastman (London) to Canberra, 11 September 1964 (I.19848), A1838, TS696/2/5 Part 3. 53 Toh makes these points in “Brinkmanship and deterrence success”. 54 British Embassy, Jakarta, to Foreign Office, 12 September 1964, A1838, TS696/2/5 Part 3. 55 The attaché gave three rather than two days’ notice because of the addition of three ships. 56 Indroyono Soesilo and Budiman, Kapal Selam Indonesia (Bogor: Penerbit Buku Ilmiah Populer, 2008), pp.xii and 208. We are grateful to Goldrick and McCaffrie, Navies of South-East Asia, for this reference. 57 “Passage of British warships through Lombok Straits with Indonesian Government permission”, Antara, 21 September 1964. 58 Oliver to Suwito, 21 September 1963, FO 371/175296. 59 Oliver to Foreign Office, 23 September 1963 (no. 1532), FO 371/175296. 60 Shann to Canberra, 13 September 1964 (I.2996), A1838, TS696/2/5 Part 3. Shann was reporting the Pakistani ambassador’s account of a conversation with Subandrio. 61 Ministry of Defence to Commander Far East Fleet, 30 December 1964, FO 371/176496 (UKNA). 62 E.H. Peck, minute, 18 January 1965, FO 371/181550 (UKNA). 63 Antara, 5 July 1965, translation of Indonesian edition, quoted in Jakarta to Foreign Office, 7 July 1965, FO 371/181550. The fleet commander was Rachmat Sumengkar. 64 Gilchrist to Foreign Office, 23 July 1965 (no. 1599), FO 371/181550. 65 Director, Far East Region, to the Assistant Secretary of Defense for International Security Affairs, 3 August 1965, FRUS, 1964–1968, vol.26, Indonesia; Malaysia-Singapore; Philippines, document 129. 66 For Australian deliberations, taken in conjunction with the UK and New Zealand, see A1838, TS696/2/5 Part 4 (NAA). 67 Djalal, “Kenang-kenangan”, pp.96–97. 68 Sumardjo, “Biografi Prof. Dr. Mochtar Kusumaatmadja”, pp.7–9 (quoted words on p.8). 69 Djalal, “Kenang-kenangan”, p.97.

458

NOTES TO PP. 132–38

70 Murray to Foreign Office, 19 December 1965 (no. 2764), FO 371/181551. 71 Gilchrist, Jakarta, to Foreign Office, 17 November 1965 (no. 2567), FO 371/181551. Ambassador Gilchrist questioned the need to provide notification in the case of the Malacca Strait, since unlike the Sunda Strait it was not an “all-Indonesian strait”, but added that he did not think “this need form ground for criticizing American action in informing the Indonesians in present circumstances”. 72 Foreign Office to Washington, 16 December 1965 (no. 10102), FO 371/181551. The extensive British discussions about passage and notification during this period are recorded in FO 371/181550 and FO 371/181551. 73 Ricklefs, Modern Indonesia, p.349. Initially sentenced to death, Subandrio remained in prison until he was released in 1995 due to ill health. 74 Ahmad Subardjo Djoyoadisuryo, Kesadaran Nasional: Otobiografi (Jakarta: Gunung Agung, 1978), p.574. 75 As far as we can determine, the government was acting under the authority the Provisional People’s Assembly (MPRS) had given it in July 1966 in Ketetapan No. XIV/MPRS/1966. According to Djalal the government abolished all councils not mentioned in the 1945 constitution except for the one dealing with aviation and outer space. Hasjim Djalal, “Hukum laut”, in Janwar M. Djani and Abdurrahman Gunadirdja (eds), Sejarah Diplomasi Republik Indonesia dari Masa ke Masa (Jakarta: Departemen Luar Negeri, 2005), buku IVA, p.408.

Chapter 7 1 Francis T. Underhill, Jr., to Jack W. Lydman, 15 December 1967, Bureau of Far Eastern Affairs, Office of Southwest Pacific Affairs, Indonesia files, 1960–1967, Box 8 (POL 33: Fishing boat seizures), RG 59 (NARA). 2 This account is largely based on Danusaputro, Wawasan Nusantara, vol.2, pp.60–66. 3 Danusaputro, Wawasan Nusantara, vol.2, p.65. See also Kusumaatmadja, Bunga Rampai, p.42. 4 Edward M. Malley, US Vice-Consul, Jakarta, memorandum of conversation with Shinichi Tanabe, Japanese Consul-General to Indonesia, 27 January 1967, in “POL 33 INDON 1/1/67”, Central Foreign Policy Files, 1967–1969, box 2211, RG 59. 5 Extract from Political Situation Report No.3/68 (Australian Embassy, Tokyo), A1838, 3034/7/8 Part 4, folio 216 (NAA). 6 This account is based on Hasjim Djalal, “Implementation of agreements with foreigners” (1978), in Francis T. Christy, Jr. (ed.), Law of the Sea: Problems of Conflict and Management of Fisheries in Southeast Asia, ICLARM Conference Proceedings, No. 2 (Manila: ICLARM, 1980); Djalal, Perjuangan, pp.134–35; and Franklin B. Weinstein, Indonesian Foreign Policy and the Dilemma of Dependence: from Sukarno to Soeharto (Ithaca: Cornell University Press, 1976), pp.236, 260, 263, 281, 286. 7 In addition to the sources cited the following account is based on Hollick, U.S. Foreign Policy and the Law of the Sea, chapters 6 and 7; James B. Morell, The Law of the Sea: an Historical Analysis of the 1982 Treaty and its Rejection by the United States (Jefferson,

NOTES TO PP. 138–45

8 9

10 11 12

13 14

15 16 17 18 19 20 21 22 23 24

25

459

N.C.: McFarland, 1992), chapter 1; Miles, Global Ocean Politics, pp.35–37; José A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (Dordrecht, Boston, London: Martinus Nijhoff, 1991), pp.46–48. United Nations, “Growth in United Nations membership, 1945-present” (http://www.un.org/en/members/growth.shtml). For a chronology of claims to territorial seas and fishing zones see Robert W. Smith, Exclusive Economic Zone Claims: An Analysis and Primary Documents (Dordrecht, Boston, and Lancaster: Martinus Nijhoff, 1986), chapter 1, annex 2. See also p.7. International Seabed Authority, “Polymetallic nodules” (www.isa.org.jm/files/ documents/EN/Brochures/ENG7.pdf), p.1. UNGA, Official Records, 22nd Session, First Committee, 1515th meeting, 1 November 1967 (A/C.1/PV.1515), p.4 (Arvid Pardo). See Norman Polmar and Kenneth J. Moore, Cold War Submarines: The Design and Construction of U.S. and Soviet Submarines (Washington, DC: Potomac Books, 2004), pp.21–22. UNGA, Official Records, 22nd Session, First Committee, 1515th and 1516th meetings, 1 November 1967 (A/C.1/PV.1515 and 1516). Leonard C. Meeker, memorandum for the Secretary, 20 December 1968, in “POL 33 Waters. Boundaries Austl 68”, Bureau of East Asian and Pacific Affairs (entry 5421), RG 59. UNGA, Resolution 2467 (XXIII), 21 December 1968. Danusaputro, Wawasan Nusantara, vol.2, p.102. Kusumaatmadja, Bunga Rampai, pp.305–6. Kusumaatmadja, Bunga Rampai, p.120. Interview by Butcher and Elson, Jakarta, 12 November 2008. US Embassy Jakarta (Lydman) to Department of State, 11 April 1969, in “POL 33 INDON 1/1/67”, Central Foreign Policy Files, 1967–1969, box 2211, RG 59. According to Leifer, a bill to extend Malaysia’s territorial sea had been submitted to parliament in 1967. Malacca, Singapore, and Indonesia, p.30. Australian Embassy, Jakarta, to Department of External Affairs, 29 August 1969, A1838, 752/1/23 Part 2 (NAA). “North Sea Continental Shelf cases”, summary judgment, 20 February 1969 (www.icj-cij.org). IHO, IAG, IOC Advisory Board on Law of the Sea, A Manual of Technical Aspects of the United Nations Convention on the Law of the Sea—1982, 4th edition (Monaco: International Hydrographic Bureau, March 2006), appendix 1, p.19. See also chapter 6.2 of the manual. Adi Sumardiman, “Affidavit of Admiral Adi Sumardiman (before the International Court of Justice—October 8, 1999)”, Hukum dan Pembangunan, 33, 1 (2003), 107. The following account is largely based on this source as well as Hasjim Djalal, “Penyelesaian sengketa Sipadan-Ligitan: interpelasi?”, Hukum dan Pembangunan, 33, 1

460

26

27

28 29

30 31 32 33 34 35

36 37 38 39 40 41 42 43 44

NOTES TO PP. 145–53

(2003), 126–33, and Hasjim Djalal, interview by Butcher and Elson, Jakarta, 12 November 2008. Comments made during discussion at a Law of the Sea Institute conference, in Choon-ho Park and Jae Kyu Park (eds), The Law of the Sea: Problems from the East Asian Perspective (Honolulu: Law of the Sea Institute, 1987), p.422. When making similar comments during an interview by Butcher and Elson on 20 November 2008 Ambassador Nugroho referred specifically to Pulau Jarak (see figure 7.3). Choon-ho Park, “Indonesia-Malaysia (continental shelf)”, in Jonathan I. Charney and Lewis M. Alexander (eds), International Maritime Boundaries (Dordrecht, Boston, and London: Martinus Nijhoff, 1993), vol.1, p.1022. Djalal, Perjuangan, p.166. Kadarusman and Mochtar Kusumaatmadja, “Report of the R.I. delegation on Indonesia-Malaysia negotiations about boundary line of territorial waters of the two countries in the Straits of Malacca”, 11 March 1970, FCO 24/1283 (UKNA). Djalal was a member of the Indonesian delegation. For an Australian report prepared while the negotiations were taking place see Jakarta to Canberra, 5 March 1970 (I.25064), A1838, 3034/7/8 Part 4. Undang-undang no. 2 of 1971, in Hamzah, Laut, Teritorial dan Perairan Indonesia, pp.211–14 (quoted words on p.214). “Indonesian sea-bed negotiations in respect of Timor/Tanimbar seas area”, p.1, A1838, 752/1/23 Part 14 (NAA). “Indonesian sea-bed negotiations in respect of Timor/Tanimbar seas area”, p.2. “Indonesian-Australian discussions on continental shelf”, p.2, A1838, 752/1/23 Part 14. Prescott, “Australia-Indonesia (seabed boundaries)”, in Charney and Alexander (eds), International Maritime Boundaries, vol.2, p.1197. See Mochtar Kusumaatmadja, “The concept of the Indonesian archipelago”, Indonesian Quarterly, 10, 4 (October 1982), 21, and “Supplementary remarks”, in Alexander (ed.), The Law of the Sea, p.177. “Indonesian-Australian discussions on continental shelf”, p.7. “Indonesian-Australian discussions on continental shelf”, p.9. These are summarized in “Indonesian sea-bed negotiations in respect of Timor/ Tanimbar seas area”, pp.9–11. For the events of 1970 see Hollick, U.S. Foreign Policy and the Law of the Sea, pp.228–39. “Statement issued by President Nixon, Washington, May 23, 1970”, FRUS, 1969–1976, vol. E–1, Documents on Global Issues, 1969–1972, document 376. UNGA, Official Records, 25th Session, First Committee, 1759th meeting, 12 November 1970 (A/C.1/PV.1759), pp.5–6. UNGA, Official Records, 25th Session, First Committee, 1785th meeting, 3 December 1970 (A/C.1/PV.1785), p.2. UNGA, Resolution 2749 (XXV), 17 December 1970. UNGA, Resolution 2750C (XXV), 17 December 1970.

NOTES TO PP. 154–60

461

45 Taslim O. Elias, “Report on the twelfth session of the Asian-African Legal Consultative Committee”, Yearbook of the International Law Commission, 1971, vol.II (2), p.210. 46 Djalal, “Hukum laut”, p.412. 47 Jakarta memorandum no. 1026, 31 July 1970, extracted in “Indonesian-Australian discussions on continental shelf”, p.11. 48 William McMahon, “Continental shelf of Australia”, speech in House of Representatives, 30 October 1970 (http://parlinfo.aph.gov.au/parlInfo). 49 “Indonesian sea-bed negotiations in respect of Timor/Tanimbar seas area”, pp.12–13. 50 “Notes on the interdepartmental meeting on the Australia/Indonesia seabed boundary, held on 24 February 1972”, p.7, A1838, 752/1/23 Part 9 (NAA). 51 The length we give is taken from Vivian Louis Forbes, Indonesia’s Maritime Boundaries (Kuala Lumpur: Malaysian Institute of Maritime Affairs, 1995), p.40. For an analysis of the three boundaries agreed on at this time see Prescott, “Australia-Indonesia (seabed boundaries)”, pp.1195–1201. 52 Leslie Bury, Minister for Foreign Affairs, “Australia-Indonesia discussions on delimitation of continental shelf”, A1838, 752/1/23 Part 6 (NAA). The quoted passage (“a solution…”) is on p.10 of this report. Although the two sides agreed that point 82 could not be taken as marking the southern end of the land border between Indonesia and Papua, they could not agree on precisely where the southern end of the land border should be. That complicated negotiations further but did not prevent them from using the 1970 line at least for the purpose of defining point B1. 53 Bury, “Australia-Indonesia discussions”. 54 The signing took place in Canberra on 18 May 1971. For the text of the agreement see Prescott, “Australia-Indonesia (seabed boundaries)”, pp.1202–05; The Geographer, U.S. Department of State, “Territorial Sea and Continental Shelf Boundaries: Australia and Papua New Guinea-Indonesia”, Limits in the Seas, no. 87 (1979). 55 Nugroho Wisnumurti, “Prof. Dr. Mochtar Kusumaatmadja, S.H., LL.M., seorang tokoh sejarah: kesan-kesan pribadi”, in Komar, Agoes, and Damian (eds), Mochtar Kusumaatmadja, Pendidik & Negarawan, pp.83–84. 56 Nugroho Wisnumurti, email message to Butcher, 12 December 2011. 57 “Summary record of the fifty-fifth meeting”, 22 March 1971 (A/AC.138/SR.55), pp.131–33. The page numbers of the summary records of all but the final session of the committee refer to pages within various volumes containing the records of all the meetings of the committee or a sub-committee for a particular period. The page numbers of the summary records of the final session (in the summer of 1973) refer to pages of the record of an individual meeting. The essential reference for locating the statements we cite is the original document number (for example, A/ AC.138/SR.55). 58 “Summary record of the fifty-fifth meeting”, pp.125–28. 59 Keputusan Presiden Republik Indonesia no. 16 of 1971 (5 April 1971), in Hamzah, Laut, Teritorial dan Perairan Indonesia, pp.208–10.

462

NOTES TO PP. 160–70

60 More literally, it declared that “every activity [setiap kegiatan]” by such vessels must possess such a permit. 61 Kenneth Bailey, memorandum of conversation with Professor Mochtar, 20 May 1971, A1838, 3034/7/8 Part 4. 62 J.R. Fonblanque, Jakarta, to M. Elliott, 1 June 1971, FCO 76/269 (UKNA). Fonblanque himself believed that the decree was primarily intended to deal with a “demarcation dispute” between the departments of defence and communications. 63 See in particular M. Elliott to M.H.C. Warner, 27 July 1971, FCO 76/269. 64 This account is largely based on Djalal, Perjuangan, chapter 4, and Leifer, Malacca, Singapore, and Indonesia, pp.35–47. 65 Leifer, Malacca, Singapore, and Indonesia, p.39. 66 Quoted in Leifer, Malacca, Singapore, and Indonesia, p.45. 67 Leifer, Malacca, Singapore, and Indonesia, p.45; “Jakarta backs KL view on Malacca Straits”, Straits Times, 30 April 1971. 68 Leifer, Malacca, Singapore, and Indonesia, pp.46–47. 69 The following account is based on Purbo S. Suwondo, Beberapa Catatan tentang Sejarah Terbentuknya Panitia Koordinasi Wilayah Nasional (Pankorwilnas) (1997); Djalal, “Hukum laut”, pp.409–10; and Danusaputro, Wawasan Nusantara, vol.2, pp.119–20. We are grateful to Eric Tagliacozzo for obtaining a copy of Purbo Suwondo’s pamphlet from the Cornell University Library. 70 Keputusan Presiden Republik Indonesia, no. 36 of 1971, 4 June 1971 (http://sipuu.setkab.go.id/PUUdoc/14632/KP0361971.htm). 71 Jakarta to Washington, 20 May 1974 (Jakarta 6160) (AAD), and “Batalyon Kavaleri 6/ Serbu Kodam I/Bukit Barisan” (http://www.yonkav6serbu.mil.id/profile/page/2/ sejarah). 72 Trihardjo also took part in the talks in Canberra in February 1971. 73 Hasjim Djalal, interview by Butcher and Elson, Jakarta, 10 August 2011.

Chapter 8 1 “Summary record of the sixty-second meeting”, 26 July 1971 (A/AC.138/SR.62), pp.9–17. 2 L.H. Border, “Law of the sea—archipelagic claims”, 2 March 1972, A1838, 938/17/10 Part 1 (NAA). Rather than giving into the Philippines government by obtaining permission before passing through the waters it claimed or provoking the government by refusing to obtain permission, Australian warships visited a Philippine port on their way through. “This involves full diplomatic clearance and the question of passage, simpliciter, does not arise.” 3 Sub-Committee II, “Summary record of the thirteenth meeting”, 16 August 1971 (A/ AC.138/SC.II/SR.13), pp.123–29. 4 Djalal, Perjuangan, p.73. 5 Republic Act No. 3046, 17 June 1961 (as amended by RA 5446, 18 September 1968) (http://www.lawphil.net/statutes/repacts/ra1961/ra_3046_1961.html).

NOTES TO PP. 170–76

463

6 Here and in the following chapters we add italics to highlight important aspects of statements, proposals, and draft texts produced during the course of the Seabed Committee and UNCLOS III. None of the passages of this type that we quote include italics except in the case of certain Latin phrases. 7 Sub-Committee I, “Summary record of the sixteenth meeting”, 6 August 1971 (A/ AC.138/SC.I/SR.16), p.200. 8 Stevenson’s statement and the draft articles are in “U.S. draft articles on territorial sea, straits, and fisheries submitted to U.N. Seabeds Committee”, Department of State Bulletin, 65 (1971), 261–68. 9 Sub-Committee I, “Summary record of the sixteenth meeting”, p.200. 10 Sub-Committee II, “Summary record of the eleventh meeting”, 12 August 1971 (A/ AC.138/SC.II/SR.11), pp.87–88. 11 Sub-Committee II, “Summary record of the twelfth meeting”, 13 August 1971(A/ AC.138/SC.II/SR.12), pp.111, 113. 12 Sub-Committee II, “Summary record of the fifteenth meeting”, 17 August 1971 (A/ AC.138/SC.II/SR.15), pp.153–56 (statement by Patrick Brazil). 13 Bailey, memorandum of conversation with Professor Mochtar Kusumaatmadja, 26 August 1971. 14 Sub-Committee I, “Summary record of the sixteenth meeting”, p.200 (Mochtar), and Sub-Committee II, “Summary record of the twelfth meeting”, p.112 (Djalal). 15 Report on the Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor beyond the Limits of National Jurisdiction (New York: United Nations, 1971), A/8421, paras. 101–102 and (for the list submitted by the thirty-two states) pp.202–04. 16 Kenneth Bailey, memorandum of conversation with Professor Mochtar Kusumaatmadja, 26 August 1971, A1838, 3034/7/8 Part 4. 17 According to Purbo Suwondo (Beberapa Catatan, pp.16–17) the membership was finalized in February 1972. Purbo himself became the secretary of Pankorwilnas. He went on to become one of the key figures in the military supporting the work of the civilian archipelagic campaigners. 18 Leifer, Malacca, Singapore, and Indonesia, pp.47–49 and (for the full statement) 204. 19 Singapore to Canberra, 26 November 1971, para.4, A1838, 3034/7/8/2 Part 1 (NAA). 20 H.A. Dudgeon to D.A. Campbell, 8 March 1972, para.5, FCO 24/1283. According to a US source (Heavner to Green, 7 April 1972, POL33–1 Indonesia Straits of Malacca 1972, RG 59 (NARA)), Stevenson was still in Kuala Lumpur when the statement was released but we have relied on the British report because it was based on very specific information from a member of the delegation. 21 Dictionary of American Naval Fighting Ships (http://www.history.navy.mil/danfs/e4/ enterprise-viiic.htm) and Iftekhar Ahmed Chowdhury, “Dhaka-Moscow Relations: Old Ties Renewed”, ISAS Working Paper no. 167 (Singapore: National University of Singapore, 2013), p.9, n.42. 22 Victor Prescott, “Indonesia-Thailand (Malacca Strait and Andaman Sea)”, in Charney and Alexander (eds), International Maritime Boundaries, vol. 2, pp.1455–63.

464

NOTES TO PP. 176–81

23 Victor Prescott, “Indonesia-Malaysia-Thailand”, in Charney and Alexander (eds), International Maritime Boundaries, vol. 2, pp.1443–54 (quoted words on p.1449). Prescott makes the point that for reasons that are far from obvious the Malaysians were on this occasion even more accommodating in relation to Thailand than the Indonesians were. We have no archival sources dealing with either of these agreements. 24 Senji Tsuruoka, “Report of the thirteenth session of the Asian-African Legal Consultative Committee”, 17 May 1972 (A/CN.4/262), in Yearbook of the International Law Commission, 1972, vol. II, pp.216–17. 25 R.E. Hoskin to Ministry of Defence, London, 21 February 1972, FCO 24/1283. 26 Ken Laughlin, Australian Embassy, Jakarta, to secretary, Department of Foreign Affairs, 29 February 1972, A1838, 938/17/10 Part 1. 27 S.N. Nandan, “Informal discussions on the law of the sea”, 4 April 1972, UNCLOS III Archives, box 69. 28 Memorandum of conversation with Djalal, Chou, and Nandan, 1 March 1972, A1838, 938/17/10 Part 1 (NAA). 29 Nandan, “Informal discussions on the law of the sea”. 30 R.L. Harry, memorandum of conversation with McLoughlin, Nandan, Small, and Beeby, 7 March 1972, A1838, 938/17/10 Part 1. 31 Spelt “archipealgoes” in the document. 32 “Summary record of the seventy-third meeting”, 10 March 1972 (A/AC.138/ SR.73), p.27. Except for a reference to the need “to keep sea and air lanes open” the summary record makes no mention of sea lanes or corridors, but in his report following the session Nandan stated that his statement “was similar to” the one McLoughlin had given in Geneva except that “it suggested slight modification in our position with regard to opening of sea lanes or corridors for international navigation”. “Report on the Seabed Committee’s first 1972 session in New York from 18th February–30th March”, 4 April 1971, para.6, UNCLOS III Archives, box 69. There is no indication in either of the sources we used whether Nandan said anything about prior notification, the passage of submarines, or passage outside sea lanes. 33 This is the date Djalal gives (Perjuangan, p.71). 34 Djalal, Perjuangan, p.71. 35 Nandan, “Informal discussions on the law of the sea”. 36 The text is in Djalal, Perjuangan, p.72. 37 Leifer, Malacca, Singapore, and Indonesia, p.108. 38 “Soviets want Malacca Str. open to free int’l traffic”, Tokyo, 5 March 1972 (AP), FCO 24/1283. 39 “China to Russia: hands off the straits”, Straits Times, 13 March 1972. 40 “‘Malaysia has ways to enforce Straits control’: Tun Ismail”, Straits Times, 16 March 1972. 41 “Cold War and the Straits”, Straits Times, 18 March 1972; telegram from Singapore (no. 1509), 18 March 1972, A1838, 3006/4/9/8 Part 2 (NAA).

NOTES TO PP. 181–86

465

42 G.R. Bentley, Singapore, to Department of Foreign Affairs, 24 March 1972, A1838, 3006/4/9/8 Part 2. 43 “Malacca Straits ship levy urged”, Times, 20 March 1972, FCO 24/1284 (UKNA). 44 Johnston to FCO, 21 March 1972, FCO 24/1284. 45 Ian Ward, “Negotiating the Strait of Malacca”, Daily Telegraph, [precise date unclear] April 1972, FCO 24/1284. 46 Leifer, Malacca, Singapore, and Indonesia, p.111. Leifer does not indicate the source of the words he quotes. For events up to this stage see also Robert Reece, “Kuala Lumpur hesitant over Malacca Strait”, Guardian, 21 March 1972, FCO 24/1284. 47 For the full statement see J.L. Simpson, statement to Sub-Committee II, 22 March 1972, FCO 24/1284. For the summary record see Sub-Committee II, “Summary record of the twenty-seventh meeting”, 22 March 1972 (A/AC.138/ SC.II/SR.27), pp.29–30. 48 Sub-Committee II, “Summary record of the twenty-eight meeting”, 24 March 1972 (A/ AC.138/SC.II/SR.28), pp.44–46. 49 The note is quoted in a memorandum dated 11 May 1972 that the Foreign Office handed to a Soviet diplomat. FCO 24/1284. 50 Ted Heavner to Green, 12 April 1972, POL 33–1 Indonesia Straits of Malacca 1972, RG 59 (NARA). 51 “Jakarta ships to patrol strait”, Guardian, 28 March 1972, FCO 24/1284. 52 The full statement is in FCO 24/1284 and Report of the Australian Delegation to the Third Session of the United Nations Enlarged Committee on the Peaceful Uses of the Sea-Bed at the United Nations Headquarters, New York, 28 February-30 March 1972 (Canberra: Govt. Printer, 1972). For the summary record see Sub-Committee II, “Summary record of the thirty-first meeting”, 29 March 1972 (A/AC.138/SC.II/ SR.31), pp.111–14. 53 R.A. Walker, “Malacca Straits”, 5 April 1972, A1838, 3034/7/8/2 Part 1. 54 R.E. Hoskin to Ministry of Defence, 21 February 1972. Hoskin also mentioned how “conscious of and sensitive to their inability to police the archipelago” the Indonesian officials he spoke to were. 55 Hollick, U.S. Foreign Policy and the Law of the Sea, p.244. 56 Nandan, “Informal discussions on the law of the sea”, paras.9–11. 57 “ALRI tolak internationalisasi Selat Malaka”, Merdeka, 5 April 1972; “Innocent passage allowed through straits”, Antara, 5 April 1972; R.M. Hunt to J.S. Chick, 10 April 1972, para.5, FCO 24/1284. 58 “Kapal selam harus muntjul di Selat Malaka”, Merdeka, 7 April 1972. 59 “US ‘must have freedom of passage’”, Straits Times, 8 April 1972. 60 P.M. Raman, “Straits use control ‘will not hurt your economy’”, Straits Times, 18 April 1972. 61 “China’s UN presence a hopeful sign: Malik”, Straits Times, 17 April 1972. 62 Jakarta to Canberra, 17 May 1972 (I.49673), A1838, 3006/4/9/8 Part 3 (NAA).

466

NOTES TO PP. 187–93

63 Jakarta to Canberra, 14 June 1972 (I.60762), A1838, 3006/4/9/8 Part 3. The impossible date, the name of the ship, and the misspelling of pulau are as we have quoted them. CPA is “closest point of approach”. 64 Heavner to Green, 7 April, 10 April, and 12 April 1972, POL 33–1 Indonesia Straits of Malacca 1972, RG 59 (NARA). His warning concerning the Seventh Fleet is in the first of these letters. 65 Djalal, Perjuangan, pp.72–78. Our only other documentary source on this meeting is a diplomatic note dated 10 July 1972 that the Indonesian Embassy in London delivered to the Foreign and Commonwealth Office, FCO 24/1284. This note contains the text of the three principles agreed to in Manila. We have cited this version of the principles rather than the very slightly different one in Djalal’s book (p.76) or the one finally presented to the Seabed Committee in March 1973. According to Djalal (email message to Butcher, 1 February 2012), the leader of the Indonesian delegation was Suffri Yusuf, the chargé d’affaires for Indonesia in Manila at that time, while the leader of the Fijian delegation was Donald McLoughlin. Purbo Suwondo (Beberapa Catatan, p.14) writes that Djalal, Indra M. Damanik, and himself “were present from Indonesia”. 66 Indonesian Embassy, London, to FCO, 10 July 1972, FCO 24/1284. 67 Report of the Inter-Agency Task Force on the Law of the Sea, 20 June 1972, NSDM 177 (part 2), National Security Council Policy Papers, Nixon Library (NARA). The report deals with archipelagos on pp.11–21; all quotations from the report are from these pages. 68 Robert D. Hodgson and Lewis M. Alexander, “Towards an objective analysis of special circumstances: bays, rivers, coastal and oceanic archipelagos and atolls”, Occasional Paper No.13, Law of the Sea Institute, University of Rhode Island, April 1972, pp.45–52. For a summary and analysis see C.F. Amerasinghe, “The problem of archipelagoes in the international law of the sea”, International and Comparative Law Quarterly, 23 (1974), 560–62. 69 Interview by Butcher and Elson, Jakarta, 22 November 2008. See also Djalal, “Hukum laut”, Dari Masa ke Masa, p.413, and Kusumaatmadja, Bunga Rampai, pp.61–62. 70 Among those attending who either already were or soon would become prominent in the law of the sea were (aside from Mochtar and Djalal) Andrés Aguilar, Lewis Alexander, R.P. Anand, J. Alan Beesley, William Burke, Hugo Caminos, Paul Engo, Robert Hodgson, Ann Hollick, Donald McLoughlin, Edward Miles, Satya Nandan, Myron Nordquist, Joseph Nye, Bernard Oxman, Choon-ho Park, Christopher Pinto, and Robert Smith. 71 Kusumaatmadja, “The legal regime of archipelagoes: problems and issues” and “Supplementary remarks”, in Alexander (ed.), The Law of the Sea, pp.166–77. 72 In 2008 Admiral Sudomo mentioned that at the time of Mochtar’s talk Gannet anti-submarine aircraft were based at an airfield near Surabaya. Interview by Butcher and Elson, Jakarta, 24 November 2008. 73 Alexander (ed.), The Law of the Sea, pp.198–99.

NOTES TO PP. 194–97

467

74 Department of State, “Department of State comments on the Report of the Inter-Agency Task Force on the Law of the Sea”. This and the other departmental responses are in NSDM 177 (part 1). Another supporter of option 2 was the Department of the Interior. 75 Joint Chiefs of Staff to Secretary of Defense, 5 July 1972, p.2. 76 Melvin Laird to Assistant to the President for National Security Affairs, 8 July 1972. Also wary of option 2 was the Department of Commerce. 77 Kissinger, National Security Decision Memorandum 177, 18 July 1972, FRUS, 1969–1976, vol. E-1, Documents on Global Issues, 1969–1972, document 434. 78 The following is based mainly on Hollick, U.S. Foreign Policy and the Law of the Sea, pp.244–45, 271–73. 79 “Australia-Indonesia seabed boundary” [February 1972], p.5 (folio 89), A1838, 752/1/ 23 Part 9; “Record of conversation with Miss E.H. Laurens, Dr. Hasjim Djalal, on 11 April 1972”, A1838, 938/17/10 Part 1. A reporter for the Sydney Morning Herald (“Sea shelf talks soon?”, 6 July 1972) remarked on the “conciliatory tone” of Mochtar’s remarks during an interview in Singapore in July 1972. 80 Furlonger to Canberra, 18 August 1972 (I.85517), A452, 1972/2593 (NAA). 81 Nigel Bowen, “For Cabinet: sea bed boundary with Indonesia” [August 1972], p.5, A1838, 752/1/23 Part 14. Several key passages have been expunged from this document by the National Archives of Australia. 82 The Australians had expected Mochtar to be the leader. Ambassador Furlonger hoped that Djajadiningrat’s selection indicated “Indonesian recognition that the subject has a large political content”. In any case, “He is a more preferable choice, from our point of view, than Mochtar or Mrs Wirjosaputro [as E.H. Laurens had recently become]”. Furlonger to Canberra, 29 September 1972 (I.100843), A1838, 752/1/23 Part 14. 83 “Report of the Australian delegation”, A2539, B1972/14 Reference Copy (NAA). 84 This map shows the median line between, on the one side, Indonesia’s islands and, on the other, continental Australia and Australia’s islands in the Timor Sea. Disregarding those islands would push the western end of the median line further south and thus closer to continental Australia. This presumably was the median line the Indonesians used as the starting point of negotiations. 85 Prescott, “Australia-Indonesia (Timor and Arafura Seas)”, in Charney and Alexander (eds), International Maritime Boundaries, vol. 2, p.1221. 86 Robert J. King, “The Timor Gap, Wonosobo and the fate of Portuguese Timor”, Journal of the Royal Australian Historical Society, 88 (2002), 82–84. We are grateful to King for a number of references that have proved useful in this chapter and chapter 17. 87 “Security Arrangements in the Border Regions between the Government of Malaysia and the Government of the Republic of Indonesia”, 6 April 1972, article 1(2)(a). 88 “Indon and Malaysia step up joint operations against communist guerrillas”, Antara, 7 April 1972. 89 L.J. Middleton (Kuala Lumpur) to D.A. Campbell (FCO), 12 December 1972, FCO 24/1284.

468

NOTES TO PP. 197–205

90 This is apparent from a slightly later document, Kuala Lumpur to Washington, 2 April 1973 (Kuala Lumpur 1361) (AAD), as well as Djalal, Perjuangan, p.124. 91 “Russian warships must give notice, says Malik”, Straits Times, 21 December 1972. 92 Stephens (FCO) to Hunt (Jakarta), 6 October 1972, FCO 24/1284.

Chapter 9 1 Nandan, Report on the March-April 1973 session of the Seabed Committee, in UNCLOS III Archives, box 69; New York to Washington, 23 March 1973 (USUN 1016) (AAD); Hollick, U.S. Foreign Policy and the Law of the Sea, pp.246–47. 2 Djalal, Perjuangan, p.77. 3 The texts of all proposals submitted to Sub-Committee II during 1973 are in Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (New York: United Nations, 1973), A/9021, vol.3. 4 Sub-Committee II, “Summary record of the fifty-third meeting”, 15 March 1973 (A/ AC.138/SC.II/SR.53), pp.63–64. 5 Sub-Committee II, “Summary record of the fifty-third meeting”, pp.64–66. 6 All these statements are in Sub-Committee II, “Summary record of the fifty-third meeting”, pp.69–72. 7 Nandan, Report on the March-April 1973 session, pp.3–4. 8 Sub-Committee II, “Summary record of the fifty-eighth meeting”, 2 April 1973 (A/ AC.138/SC.II/SR.58), pp.120–22. 9 Sub-Committee II, “Summary record of the fifty-eighth meeting”, pp.124–27. 10 Sub-Committee II, “Summary record of the fifty-eighth meeting”, pp.129–30. 11 Nandan, Report on the March-April 1973 session, p.2. 12 Sub-Committee II, “Summary record of the fifty-eighth meeting”, pp.139–40. 13 Sub-Committee II, “Summary record of the fifty-ninth meeting”, 3 April 1973 (A/ AC.138/SC.II/SR.59), pp.162–65. 14 Except where otherwise noted the quotes from Djalal’s statement come from the summary record. Sub-Committee II, “Summary record of the sixtieth meeting”, 4 April 1973 (A/AC.138/SC.II/SR.60), pp.189–92. For the full statement see Djalal, Indonesia and the Law of the Sea, pp.306–10. 15 This version of what Djalal said comes from Nandan, Report on the March-April 1973 session, p.16. 16 Sub-Committee II, “Summary record of the sixty-second meeting”, 5 April 1973 (A/ AC.138/SC.II/SR.62), pp.232–34. 17 For the full text see Danusaputro, Wawasan Nusantara, vol.2, pp.67–68. Our translation is a variation of the English translation in Dino Patti Djalal, The Geopolitics, pp.152–53, that was released by the Indonesian government. There is a vast literature in Indonesian on Wawasan Nusantara. A notable compendium of pronouncements on the subject is Lembaga Pertahanan Nasional, Bunga Rampai Wawasan Nusantara (Jakarta: Skala Indah, [1982]), vol.1. 18 Danusaputro, Wawasan Nusantara, vol.2, p.68.

NOTES TO PP. 206–9

469

19 Djalal, Perjuangan, p.165. 20 Mochtar had been part of the legal team that represented the marines when their death sentence was appealed to the Privy Council in London. 21 On the change in relations between Indonesia and Singapore at this time see Terence Lee Chek Liang, “Explaining Indonesia’s relations with Singapore during the New Order period”, Working Paper No.10, Institute of Defence and Strategic Studies, Singapore, May 2001. See also Leifer, Malacca, Singapore, and Indonesia, pp.119–20. 22 Hasjim Djalal, interview by Butcher and Elson, 12 November 2008. 23 These are the dates given in the explanatory note (penjelasan) accompanying the law by which Indonesia ratified the agreement, Law No.7 of 1973. Hamzah, Laut, Teritorial dan Perairan Indonesia, p.266. 24 For an analysis of the boundary see Prescott, “Indonesia-Singapore”, in Charney and Alexander (eds), International Maritime Boundaries, vol.1, pp.1049–56. 25 Quoted in Lee, “Explaining Indonesia’s relations with Singapore”, p.21. 26 Bangkok to Washington, 17 April 1973 (Bangkok 5939), and Kuala Lumpur to Washington, 25 April 1973 (Kuala Lumpur 1743) (AAD). 27 “Increasing cordiality—and a pledge to further strengthen relations”, Straits Times, 28 May 1973. 28 Singapore to Washington, 9 June 1973 (Singapore 2348) (AAD). 29 Djalal, Perjuangan, pp.119–20. 30 “Tripartite meeting on safety of navigation in Straits of Malacca and Singapore June 25–26”, Foreign Affairs Malaysia, 1973 (Kuala Lumpur: Ministry of Foreign Affairs, 1974), p.76 (quoted words); Leifer, Malacca, Singapore, and Indonesia, p.120; Kuala Lumpur to Washington, 2 April (Kuala Lumpur 1361) and 27 June 1973 (Kuala Lumpur 2762) (AAD). 31 Council of Ministers, Twenty-First Ordinary Session, Addis Ababa, Ethiopia, 17–24 May 1973, “Resolutions” (http://www.au.int/fr/decisions/council). 32 Nandan, Report on the March-April 1973 session, p.4. According to Nandan, this was Edwin Venchard. Danusaputro (Wawasan Nusantara, vol.4, p.172) writes that Anil Gayan, who later figured prominently in the Mauritian delegation, had a great deal to do with having the endorsement included in the declaration. 33 “Provisional summary record of the ninety-fourth meeting”, 2 July 1973 (A/AC.138/ SR.94), p.5. 34 Nandan, “Summer session of the Seabed Committee, Geneva July/August 1973”, p.4, UNCLOS III Archives, box 69. 35 Djalal, Perjuangan, p.78. 36 Geneva to Washington, 18 July 1973, para.6 (Geneva 3706) (AAD). Nandan did not mention this incident in his report on the Geneva session but in 1974 told US officials that Fiji’s “more liberal attitude toward navigation issues” “almost led to a break between Fiji and others in [the] group” during the final session of the Seabed Committee. Washington to Suva, 9 May 1974, para.9 (State 095957) (AAD).

470

NOTES TO PP. 210–17

37 Article 3(2) of L.42 became the basis of article 19(2) of the Law of the Sea Convention. For an analysis of that article see Churchill and Lowe, The Law of the Sea, pp.85–86. Churchill and Lowe remark that whereas the Territorial Sea Convention required the coastal state to demonstrate that the passage of a particular ship actually prejudiced its security article 19(2) automatically renders a ship’s passage non-innocent if it engages in one of the listed activities. Listed as the final item in both article 3(2) of L.42 and article 19(2) of the convention is “any other activity not having a direct bearing on passage” (emphasis added). 38 Nandan confirmed this intention during his statement on 24 July 1973. Sub-Committee II, “Provisional summary record of the sixty-eighth meeting”, 24 July 1973 (A/AC.138/SC.II/SR.68), p.3. 39 A/AC.138/SC.II/L.30, 16 July 1973. 40 The Indonesian and Spanish statements are in Sub-Committee II, “Provisional summary record of the sixty-seventh meeting”, 19 July 1973 (A/AC.138/SC.II/SR.67), pp.17–20. 41 Sub-Committee II, “Provisional summary record of the sixty-eighth meeting”, 24 July 1973 (A/AC.138/SC.II/SR.68), pp.2–4. 42 Sub-Committee II, “Provisional summary record of the sixty-ninth meeting”, 24 July 1973 (A/AC.138/SC.II/SR.69), p.10 (Canada); “Provisional summary record of the seventieth meeting”, 25 July 1973 (A/AC.138/SC.II/SR.70), p.4 (India) and p.9 (Kenya); Geneva to Washington, 27 July 1973 (Geneva 3965) (AAD) (Sri Lanka and Singapore). 43 Nandan, “Summer session of the Seabed Committee…1973”, pp.3–4. 44 The quotations in this paragraph are from Nandan, “Summer session of the Seabed Committee…1973”, pp.3–5. 45 The text became A/AC.138/SC.II/L.48, 6 August 1973. 46 Geneva to Washington, 31 July 1973 (Geneva 4020) (AAD). 47 Djalal was to discuss this during his statement on 13 August 1973: Indonesia and the Law of the Sea, p.321. 48 Nandan, “Summer session of the Seabed Committee…1973”, pp.1–2. 49 Sub-Committee II, “Provisional summary record of the seventy-first meeting”, 8 August 1973 (A/AC.138/SC.II/SR.71), pp.7–21. We have deduced some of the points Pardo made from Djalal’s response. 50 Sub-Committee II, “Provisional summary record of the seventy-first meeting”, 8 August 1973, p.22. 51 The biggest island, Natuna Besar (see figure 7.2), is about five times the size of Malta. 52 Sub-Committee II, “Provisional summary record of the seventy-second meeting”, 9 August 1973 (A/AC.138/SC.II/SR.72), pp.17–19. 53 The two draft articles were A/AC.138/SC.II/L.46 and L.47, both dated 6 August 1973. 54 The Philippine delegation left no doubt about its intentions in relation to the width of the territorial sea when it submitted a revised version of L.47 the day after Tolentino’s statement. According to A/AC.138/SC.II/L.47/Rev.1 (10 August 1973), it would have

NOTES TO PP. 217–21

55 56 57 58 59

60 61

62 63 64 65 66 67

471

been possible for a state to have a territorial sea of any width as long as it had established that territorial sea before the approval of the convention. Sub-Committee II, “Provisional summary record of the seventy-second meeting”, 9 August 1973, pp.21–22. Pulau Subi Besar, the biggest island in the group, is the island at point 32 in figure 7.2. Sub-Committee II, “Provisional summary record of the seventy-second meeting”, p.24. Sub-Committee II, “Provisional summary record of the seventy-second meeting”, p.23. Sub-Committee II, “Provisional summary record of the seventy-second meeting”, p.24. According to article 2(6) of the fisheries act, Act No.4003 of 1932, “‘Philippine waters, or territorial waters of the Philippines’, includes all waters pertaining to the Philippine Archipelago, as defined in the treaties between the United States and Spain....” It is unclear how Tolentino arrived at the figures of 180 and 147 miles. To the east of northern Luzon the “boundary” (at 127° E) is more than 250 miles from the nearest land belonging to the Philippines. Sub-Committee II, “Provisional summary record of the seventy-third meeting”, 13 August 1973 (A/AC.138/SC.II/SR.73), pp.3–4 (Glover) and pp.5–6 (Nandan). Sub-Committee II, “Provisional summary record of the seventy-third meeting”, pp.10–17. The quotes are from the full statement in Djalal, Indonesia and the Law of the Sea, pp.315–28. Sub-Committee II, “Provisional summary record of the seventy-third meeting”, pp.20–21. Djalal, Perjuangan, p.82. Nandan, “Summer session of the Seabed Committee…1973”, p.8. Sub-Committee II, “Provisional summary record of the seventy-fifth meeting”, 15 August 1973 (A/AC.138/SC.II/SR.75), pp.6–8 (Australia) and pp.8–9 (USSR). Report of the Committee on the Peaceful Uses of the Sea-Bed, vol.4. The following is based on Djalal, Perjuangan, p.123, and Hasjim Djalal, interview by Butcher and Elson, 11 August 2011. According to Djalal (Perjuangan, p.123) the Malaysians put forward their idea during “the final session of the UN Seabed Committee (March-April 1973)”. Because he goes on to repeat that the idea was raised “during the final session” we have concluded that he is referring to the July-August Geneva session. A US report from late July 1973 contains a hint that the Malaysians had some sort of plan at that time to make use of the archipelagic concept. According to that report, Djalal told American negotiators that the archipelagic states group had “agreed on ‘intrinsic geographical unity’ criterion as satisfying ‘genuine’ archipelago states and exclud[ing] non-genuine (e.g. Malaysia)”. Geneva to Washington, 31 July 1973. In 2013 a senior Malaysian Foreign Ministry official told Nicole Jenne about the Malaysian proposal but he was unable to remember when it was made. According to both Professor Djalal and the Malaysian official the concept of the Malay Archipelago came from Ghazali Shafie. We are grateful to Ms Jenne for sharing information she collected while doing research for her soon-to-be-submitted PhD thesis.

472

NOTES TO PP. 222–27

68 US delegates noted that their Malaysian counterparts made no mention of the idea of “a common archipelago with Indonesia” during a meeting at the Caracas session in July 1974. Caracas to Washington, 4 July 1974, para.2 (Caracas 6143) (AAD). This is our only explicit archival reference to the idea. 69 Djalal, Perjuangan, p.124. 70 Truver, The Strait of Gibraltar and the Mediterranean, pp.157–58. Truver makes the point that by ignoring Spain’s centuries-old claim to a 6-mile-wide territorial sea and Morocco’s recent claim to a 12-mile-wide territorial sea the US “assumed a strip of high seas existed in the middle of the strait.... It was above this corridor that the U.S. C-5 and C-141 aircraft flew.” 71 Hollick, U.S. Foreign Policy and the Law of the Sea, p.273. 72 “Indonesia menyesalkan—jika benar kapal2 perang AS lewat Selat Malaka”, Kompas, 1 November 1973. 73 Jakarta to Washington, 13 November 1973 (Jakarta 13343) (AAD). 74 Jakarta to Washington, 16 November 1973 (Jakarta 13486) (AAD). 75 On the decision to go ahead with the conference see Tommy T.B. Koh and Shanmugam Jayakumar, “The negotiating process”, in Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. 1 (Dordrecht, Boston, and Lancaster: Martinus Nijhoff, 1985), pp.52–54. 76 UNCLOS III, Official Records, vol.1, p.30. The full text of the UN resolution (3967 (XXVIII)) is in Nordquist (ed.), Commentary, vol.1, pp.188–90. 77 UNCLOS III, Official Records, vol.1, p.18. 78 See Miles, Global Ocean Politics, pp.115–18.

Chapter 10 1 Oxman to Washington, 10 January 1974 (Tokyo 0348) (AAD). Djalal refers to the Japanese expression of “understanding [pengertian]” in Perjuangan, p.137. On 16 January, at the end of a tumultuous visit to Jakarta during which student demonstrations against corruption, high prices, and the New Order’s encouragement of foreign investment in Indonesia turned into a full-scale riot, the Japanese prime minister, Tanaka, expressed his government’s “readiness to give sympathetic consideration” to the archipelagic concept in a statement he and Suharto released to the press. Jakarta to Washington, 17 January 1974 (Jakarta 0667) (AAD). On the “Malari affair” see R.E. Elson, Suharto: A Political Biography (Cambridge: Cambridge University Press, 2001), pp.206–7. 2 Oxman to Washington, 10 January 1974. 3 Washington to Manila, Jakarta, and Surabaya, 29 March 1974 (State 063021) (AAD). They also “considered there would be some advantage gained by indicating to Indonesians that we believed they are the key to archipelago negotiations”. The US ambassador to the Philippines, William Sullivan, worried that “the rather curious game plan” being pursued by US negotiators could jeopardize the success of US talks with “our oldest ally in Asia” on military and economic matters. Manila to Washington, 30 March 1974 (Manila 3748) (AAD).

NOTES TO PP. 227–36

473

4 Kenneth Rush, memorandum to President Nixon, 16 January 1974, in FRUS, 1969–1976, vol. E–12, Documents on East and Southeast Asia, 1973–1976, document 103. 5 Washington to Jakarta, 6 February 1974 (State 024353) (AAD). 6 Jakarta to Washington, 4 March 1974 (Jakarta 2708) (AAD). 7 Jakarta to Washington, 17 January 1974 (Jakarta 0721) (AAD). 8 Djalal, “Kenang-kenangan”, pp.99–100. 9 Sudarmono had been appointed chief of general staff (the position that carried with it the chairmanship of Pankorwilnas) in June 1973 but was now chief of general operations. That position had replaced the position of chief of general staff during a recent reorganization of the military. “Current data on the Indonesian military elite”, Indonesia, no. 18 (1974), p.156. 10 Washington to Jakarta, 20 March 1974 (State 055321) (AAD). 11 Jakarta to Washington, 19 March 1974 (Jakarta 3384) (AAD). 12 The following account is based on Jakarta to Washington, 26 March (Jakarta 3720), 27 March (Jakarta 3779), 27 March (Jakarta 3781), and 28 March 1974 (Jakarta 3791) and Washington to Manila, 11 April 1974 (State 73370) (AAD). 13 Sumitro’s concerns about, and plans for, Buru are reported in Jakarta to Washington, 16 October 1973 (Jakarta 12266) (AAD). See also Jakarta to Washington, 13 September (Jakarta 10911), 9 November (Jakarta 13222), and 15 November 1973 (Jakarta 13451) (AAD). 14 The Khmer Republic’s delegation also expressed reservations but we have no information on what those were. On the Kampala Declaration and Nairobi meeting see Hollick, U.S. Foreign Policy and the Law of the Sea, pp.288–89. 15 Kuala Lumpur to Washington, 18 March 1974 (Kuala Lumpur 1183) (AAD). 16 On the expansion of the Thai fishing industry at this time see Butcher, The Closing of the Frontier, pp.193–201. 17 Le Van Loi to RVN foreign minister, in Nairobi to Saigon, 3 April 1974 (Nairobi 02802) (AAD). See also Jakarta to Washington, 26 April 1972 (Jakarta 5102); New Delhi to Washington, 31 May 1974, para.3 (New Delhi 7239); and Jakarta to Washington, 28 June (Jakarta 7993) and 28 June 1974 (Jakarta 7994) (AAD). 18 Nairobi to Washington, 9 April 1974, para.3 (Nairobi 2966) (AAD). 19 Kuala Lumpur to Washington, 5 June 1974 (Kuala Lumpur 2607) (AAD). 20 This and the following paragraph are based on Kuala Lumpur to Washington, 5 June 1974. 21 “Notes of a meeting held in the Prime Minister’s conference room…11th April, 1974”, UNCLOS III Archives, box 69. 22 “Notes of a meeting held in the Prime Minister’s conference room…11th April, 1974.” 23 Jakarta to Washington, 14 May 1974 (Jakarta 5867) (AAD). 24 Jakarta to Washington, 10 May 1974 (Jakarta 5760) (AAD). 25 Washington to Jakarta, 3 June 1974 (State 115667) (AAD). That at least is how US officials characterized the Indonesians’ assessment.

474

NOTES TO PP. 236–40

26 Presumably Hodgson ignored Rotuma and other outlying islands when making his calculations. 27 Washington to Suva, 9 May 1974. 28 The Inter-Agency Task Force had set out its view that the territorial sea should not necessarily be measured from the “archipelagic construction lines” in its proposed instructions to the US delegation. John Norton Moore, “Proposed instructions for the Third United Nations Conference on the Law of the Sea”, 25 March 1974, p.30 (NSDM 240, part 1) (National Security Council Policy Papers, Nixon Library (NARA)). The idea of “construction lines” had been central to Hodgson and Alexander’s 1972 proposal. These lines would be used to determine the extent of “insular waters” (in which foreign ships and aircraft would have the same freedom of navigation and overflight as on the high seas), while the (12-mile) territorial sea would be measured out from each individual island. “Towards an objective analysis of special circumstances”, p.46. 29 Kuala Lumpur to Washington, 7 May 1974, para.6 (Kuala Lumpur 2087) (AAD). 30 Kuala Lumpur to Washington, 5 June 1974, para.5. This report was based on a meeting with senior officials in the Ministry of Foreign Affairs. 31 Our account follows that related to the US ambassador to Singapore, Edwin Cronk, by the permanent secretary of the Ministry of Foreign Affairs, George Bogaars. Singapore to Washington, 14 May 1974 (Singapore 2096) (AAD). A few weeks later a number of other officials gave a very different account, “point[ing] out [that the] ASEAN meeting ‘disintegrated’ because of resistance to Indonesia’s insistence on having a common position in support of” the Indonesia-Philippines proposal. Singapore to Washington, 8 June 1974 (Singapore 2512) (AAD) (emphasis added). 32 Jakarta to Washington, 10 May 1974 (Jakarta 5740) (AAD). 33 Leslie Fong, “Raja’s hopes for ASEAN free trade area”, Straits Times, 7 May 1974; Singapore to Washington, 8 June 1974. 34 Bogaars, quoted in Singapore to Washington, 14 May 1974. 35 Jakarta to Washington, 4 June 1974, para.1 (Jakarta 06803) (AAD). This report was based on a meeting the deputy chief of mission at the US Embassy had with Umaryadi Nyotowiyono, who by this time was the secretary-general of ASEAN. 36 Jakarta to Washington, 14 May 1974, and Washington to Jakarta, 3 June 1974 (State 115667). 37 Nairobi to Washington, 22 May 1974 (Nairobi 04198) (AAD). 38 Washington to Kuwait, 24 May 1974 (State 110208) (AAD). 39 Washington to Manila, 12 June 1974 (State 124690) (AAD). 40 Satya Nandan to Secretary for Foreign Affairs, “The law of the sea”, 17 June 1974, UNCLOS III Archives, box 69. 41 This account is based on Washington to Jakarta, 3 June 1974 (State 115667); Washington to Jakarta, 3 June 1974 (State 115668); and Washington to Caracas, 15 June 1974 (State 128398) (AAD). 42 Washington to Jakarta, 3 June 1974 (State 115667).

NOTES TO PP. 241–48

475

43 That the Indonesians had suggested this provision is mentioned in Manila to Washington, 7 June 1974 (Manila 6741) (AAD). 44 The report is apparently contained in document 1974MANILA07511, dated 24 June 1974. Electronic Withdrawal Cards, 1/1974–12/1974, Central Foreign Policy Files, RG 59 (AAD). 45 Manila to Washington, 7 June 1974 (Manila 6706) (AAD). 46 Nandan to Secretary for Foreign Affairs, “The law of the sea”, 17 June 1974. 47 Manila to Washington, 15 April 1974 (Manila 4295); Manila to Washington, 23 May 1974 (Manila 6080); Caracas to Washington, 2 July 1974 (Caracas 6102) (AAD). During the Caracas session Moore told Nandan and McLoughlin that the “US negotiating task was much more difficult now because of the negative reaction from the Philippines”. Caracas to Washington, 8 July 1974 (Caracas 6185) (AAD). 48 Jakarta to Washington, 11 June 1974 (Jakarta 7134) (AAD). 49 Washington to Caracas, 15 June 1974. 50 Jakarta to Washington, 28 June 1974 (Jakarta 7989) (AAD). 51 Jakarta to Washington, 24 June 1974 (Jakarta 7720) (AAD). 52 Caracas to Washington, 2 July 1974 (Caracas 6024) (AAD). The telegram is signed “Stevenson” but headed “For Newsome [sic] from Moore”, suggesting that Stevenson was sending the message on Moore’s behalf. 53 Nandan to Secretary for Foreign Affairs, “The law of the sea”, 17 June 1974. Moore’s letter, dated 28 June 1974, is in UNCLOS III Archives, box 69. Moore emphasized that without “an early satisfactory accommodation” on passage through straits and archipelagos “we must oppose acceptance of the archipelago concept in order to protect our vital navigational interest”. 54 Djalal, Perjuangan, p.124. 55 The US ambassador to Malaysia wrote after the meeting between the two heads of government that it was unclear whether Suharto had agreed to the designation of sea lanes or had given Razak some other specific assurances regarding transit. Kuala Lumpur to Washington, 7 May 1974. 56 “Indonesia’s archipelagic regime: implications for Malaysia”, Marine Policy, 8, 1 (January 1984), 34–35.

Chapter 11 1 UNCLOS III, Official Records, vol.1, pp.35–40 (quote on p.35). 2 Statement by Constantin A. Stavropoulos, in Nordquist (ed.), Commentary, vol.1, p.lxv. 3 “Organization of the second session of the conference”, UNCLOS III, Official Records, vol.3, p.59; Hollick, U.S. Foreign Policy and the Law of the Sea, p.289. 4 UNCLOS III, Official Records, vol.1, p.96. 5 UNCLOS III, Official Records, vol.1, pp.144–45. 6 UNCLOS III, Official Records, vol.1, p.124. 7 UNCLOS III, Official Records, vol.1, p.98.

476 8

9 10 11 12

13 14 15

16

17 18 19 20 21 22 23 24 25

26 27 28 29 30 31 32 33 34

NOTES TO PP. 248–61

For the full text (from which we have quoted) see Kusumaatmadja, Bunga Rampai, pp.91–101. The summary record is in UNCLOS III, Official Records, vol.1, pp.187–88. Miles, Global Ocean Politics, p.123. For details on the group system see Koh and Jayakumar, “The negotiating process”, pp.68–86, and Miles, Global Ocean Politics, pp.20–33. UNCLOS III, Official Records, vol.1, p.82. This paragraph is based on the specific points mentioned in Caracas to Washington, 13 August 1974 (Caracas 7731) (AAD) and changes incorporated into A/CONF.62/L.4 (see below). Caracas to Washington, 13 August 1974. We have deduced this agreement from the fact article 6(2) of A/CONF.62/L.4 deals with it. “Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand and Norway: working paper” (A/CONF.62/L.4), 26 July 1974, UNCLOS III, Official Records, vol.3, pp.81–83, and Kusumaatmadja, Bunga Rampai, p.56. On the broader story of A/CONF.62/L.4 see Miles, Global Ocean Politics, pp.129–31. Satya N. Nandan and Shabtai Rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. 2 (Dordrecht, Boston, and London: Martinus Nijhoff, 2002), pp.287–88, 323, 334–35; UNCLOS III, Official Records, vol.2, pp.125–26. The UK proposal was A/CONF.62/C.2/L.3, 3 July 1974. UNCLOS III, Official Records, vol.2, p.103. UNCLOS III, Official Records, vol.2, p.128. This account is based on Caracas to Washington, 13 August 1974. Washington to London, 27 July 1974 (State 162571) (AAD). UNCLOS III, Official Records, vol.1, pp.201–5. For the full text see Djalal, Indonesia and the Law of the Sea, pp.329–33 (quoted words on p.331), and, for the summary record, UNCLOS III, Official Records, vol.2, p.169. UNCLOS III, Official Records, vol.2, p.198. UNCLOS III, Official Records, vol.2, p.208. The articles quoted in the following discussion come from “Fiji, Indonesia, Mauritius and Philippines: draft articles relating to archipelagic States” (A/CONF.62/C.2/L.49), 9 August 1974, UNCLOS III, Official Records, vol.3, pp.226–27. Djalal, Perjuangan, p.124. Jakarta to Washington, 3 August 1974 (Jakarta 9563) (AAD). This account is based on Jakarta to Washington, 8 August 1974 (Jakarta 9752) (AAD). Caracas to Washington, 14 August 1974 (Caracas 7810) (AAD). Caracas to Washington, 14 August 1974. UNCLOS III, Official Records, vol.2, p.260. UNCLOS III, Official Records, vol.2, pp.262–63. UNCLOS III, Official Records, vol.2, p.270. UNCLOS III, Official Records, vol.2, p.265.

NOTES TO PP. 261–71

35 36 37 38 39 40 41 42 43 44 45

46 47 48 49 50 51 52

53 54

55 56

477

UNCLOS III, Official Records, vol.2, p.262. UNCLOS III, Official Records, vol.2, p.263. UNCLOS III, Official Records, vol.2, p.266. UNCLOS III, Official Records, vol.2, p.271. UNCLOS III, Official Records, vol.2, p.272. UNCLOS III, Official Records, vol.2, p.265. UNCLOS III, Official Records, vol.2, p.267. UNCLOS III, Official Records, vol.2, p.261. UNCLOS III, Official Records, vol.2, p.263. UNCLOS III, Official Records, vol.2, p.270. Caracas to Washington, 17 August 1974 (Caracas 7954) (AAD). The despatch was signed by Stevenson but presumably prepared by Moore, who apparently met Sudarmono on his own. Caracas to Washington, 17 August 1974. Jakarta to Washington, 20 August 1974 (Jakarta 10243) (AAD). Jakarta to Washington, 21 August 1974 (Jakarta 10305) (AAD). UNCLOS III, Officials Records, vol. 2, pp.292–93 (19 August 1974). A/CONF.62/C.2/L.64 (16 August 1974), in UNCLOS III, Official Records, vol.3, pp.233–34. UNCLOS III, Officials Records, vol. 2, p.293. A/CONF.62/C.2/L.63 (15 August 1974), in UNCLOS III, Official Records, vol.3, p.233; UNCLOS III, Official Records, vol.2, p.298. The Thai delegation gave no statement regarding these draft articles. A/CONF.62/C.2/L.24/Rev.l (19 August 1974), in UNCLOS III, Official Records, vol.3, p.202. A/CONF.62/C.2/L.67 (16 August 1974), in UNCLOS III, Official Records, vol.3, p.235; UNCLOS III, Official Records, vol.2, p.295 (Nugroho Wisnumurti) and p.299 (Alejandro Yango); Djalal, Perjuangan, p.134. A/CONF.62/L.8/REV.1 (19 October 1974), in UNCLOS III, Official Records, vol.3. The section dealing with archipelagos is on pp.136–38. UNCLOS III, Official Records, vol.1, p.217.

Chapter 12 1 Jakarta to Washington, 19 September 1974 (Jakarta 11608) (AAD). 2 Jakarta to Washington, 20 September 1974 (Jakarta 11719) (AAD). 3 “Justice minister says big powers support archipelago concept”, Antara, 8 October 1974; Jakarta to Washington, 8 October 1974 (Jakarta 12457) (AAD). 4 Djalal, “Implementation of agreements with foreigners” (1978), p.43. 5 Jakarta to Washington, 16 November 1974 (Jakarta 13951) (AAD). 6 The team members are listed in Jakarta to Washington, 4 December 1974 (Jakarta 14650) and 12 December 1974 (Jakarta 14919) (AAD). 7 Jakarta to Washington, 10 December 1974 (Jakarta 14833) (AAD).

478

NOTES TO PP. 271–83

8 The following account of the formal negotiations on 9 and 10 December is based on Jakarta to Washington, 12 December 1974 (Jakarta 14919) (AAD). 9 Jakarta to Washington, 10 December 1974. 10 Jakarta to Washington, 11 December 1974 (Jakarta 14917) (AAD). 11 The following account is based on Jakarta to Washington, 11 December 1974. Moore was accompanied by Oxman and Morris at the second meeting. There is no mention of any Indonesians except for Sudarmono being present at either meeting. 12 [D.H. Anderson], “Archipelagic states: US talks with Indonesia and the Philippines”, FCO 76/1088 (UKNA). 13 The disaster was extensively reported in Indonesian newspapers. On 10 January the front page of Kompas carried a photo of the oil slick that Hasjim Djalal had supplied from his post at the Indonesian Embassy in Singapore. 14 Jakarta to Washington, 13 January 1975 (Jakarta 0471) (AAD); “Malik deplores pollution by Showa Maru”, Antara, 13 January 1975; “Adam Malik: bukan jaminan”, Kompas, 13 January 1975. 15 Jakarta to Washington, 18 January (Jakarta 0756) (AAD). 16 Jakarta to Washington, 10 February 1975 (Jakarta 1701) (AAD). 17 Tehran to Washington, 30 January 1975 (Tehran 0909) (AAD). 18 The following is based on London to Washington, 1 February 1975 (London 01594), and Washington to London, 13 February 1975 (State 033460) (AAD). 19 The “Outline” is in Washington to Manila, 24 February 1975 (State 040746) (AAD), and FCO 76/1088. 20 USUN to Washington, 12 February 1975 (USUN 460) (AAD). Myron Nordquist was also present at this meeting. 21 D.H. Anderson, “Proposed understanding of archipelagic states and straits”, 13 February 1975, FCO 76/1088. 22 FCO 76/1088, folios 20–29 and 33. 23 Jakarta to Washington, 10 February 1975 (Jakarta 1732) (AAD). 24 Jakarta to Washington, 10 February 1975 (Jakarta 1701) (AAD). 25 Kusumaatmadja, Bunga Rampai, pp.254–56; Leifer, Malacca, Singapore, and Indonesia, pp.66–67; Singapore to Washington, 22 February 1975 (Singapore 0723) (AAD); P.M. Raman, “Curbs on use of straits”, Straits Times, 20 February 1975. 26 Jakarta to Washington, 24 February 1975 (Jakarta 2252), and 3 March 1975 (Jakarta 2614) (AAD). 27 Jakarta to Washington, 22 February 1975 (Jakarta 2212) (AAD). 28 Jakarta to Washington, 22 February 1975. 29 Jakarta to Washington, 28 February 1975 (Jakarta 2555) (AAD). 30 Jakarta to Washington, 3 March 1975 (Jakarta 2614) (AAD). 31 Jakarta to Washington, 3 March 1975 (Jakarta 2613) (AAD). 32 The details on the draft articles provided in this paragraph and the following four paragraphs come entirely from the summary in Jack A. Draper, “The Indonesian archipelagic state doctrine and the law of the sea: ‘territorial grab’ or justifiable

NOTES TO PP. 283–90

33 34 35 36 37 38 39 40 41 42 43 44 45

479

necessity?”, International Lawyer, 11 (1977), 153–57. Draper, who was a visiting lecturer at Padjadjaran University when he wrote this article, consulted the delegation’s draft articles, which were included in an annex to the delegation’s report on the Geneva session. Djalal, Perjuangan, p.126. Djalal, Perjuangan, p.131. On discussions with the Singaporeans see p.120. Jakarta to Washington, 6 March 1975 (Jakarta 2793) (AAD). Jakarta to Washington, 6 March 1975. Nandan to Secretary for Foreign Affairs, 6 March 1975, UNCLOS III Archives, box 69. Jakarta to FCO, 10 March 1975, FCO 76/1088, folio 32. See also Jakarta to Washington, 13 March 1975 (Jakarta 3030) (AAD). Combs to FCO, 12 March 1975, FCO 76/1088, folio 34. Jakarta to Washington, 13 March 1975. Jakarta to Washington, 17 March 1975 (Jakarta 3124) (AAD). Jakarta to Washington, 3 March 1975 (Jakarta 2614) (AAD). Jakarta to Washington, 6 March 1975. Washington to Jakarta, 25 February (State 041787) and 8 March 1975 (State 052562) (AAD). Geneva to Washington, 7 April 1975 (Geneva 2374) (AAD).

Chapter 13 1 UNCLOS III, Official Records, vol.4, p.4. 2 Miles, Global Ocean Politics, p.161. On the operation itself see Norman Polmar and Michael White, Project Azorian: The CIA and the Raising of the K-129 (Annapolis: Naval Institute Press, 2010). 3 UNCLOS III, Official Records, vol.4, pp.73–74 and 192–94 (quote on p.193). The changes in the chairmanship at the third and fourth sessions were worked out within the Latin American group, to which the conference had assigned the chairmanship of the Second Committee. 4 “Delegations to the Third United Nations Conference on the Law of the Sea”, A/ CONF.62/INF.4/Rev.1 (17 September 1975), pp.29–30. Extracts from this and a number of other lists of delegates were supplied by the Dag Hammarskjöld Library. 5 S.N. Nandan and D.H. Anderson, “Straits used for international navigation: a commentary on Part III of the United Nations Convention on the Law of the Sea 1982”, British Yearbook of International Law, 60 (1989), 163. 6 See statement by McLoughlin, 23 July 1974, UNCLOS III, Official Records, vol.2, p.137. 7 Satya Nandan, “The third session of the Conference on the Law of the Sea”, attached to Nandan to Secretary for Foreign Affairs, “Report on Geneva Session”, 9 June 1975, UNCLOS III Archives, box 69.

480

NOTES TO PP. 291–95

8 Nandan and Anderson, “Straits used for international navigation”, p.163, note that the representatives of Ethiopia and Lebanon did not attend the final meetings of the group. 9 Satya Nandan, telephone interview by Butcher, 15 September 2009; Nandan and Anderson, “Straits used for international navigation”, pp.163–64 (the two quotations in this paragraph are from p.164). 10 Geneva to Washington, 3 April 1975 (Geneva 2287) (AAD); Miles, Global Ocean Politics, p.167. 11 Miles, “An interpretation of the Geneva proceedings—part I”, Ocean Development and International Law Journal, 3 (1976), 190–91, and Global Ocean Politics, p.163. 12 UNCLOS III, Official Records, vol.4, p.13. 13 Nandan, “The third session”. 14 UNCLOS III, Official Records, vol.4, pp.31–33. 15 UNCLOS III, Official Records, vol.4, p.34. 16 UNCLOS III, Official Records, vol.4, p.41. For more on these events see Miles, Global Ocean Politics, pp.198–201. 17 Nandan, “The third session”, p.2. 18 Miles, Global Ocean Politics, p.165. 19 Geneva to Washington and Jakarta, 16 April 1975 (Geneva 2656) (AAD); Nandan, “Progress report from Fiji delegation to the UN 3rd Law of the Sea Conference”, 17 April 1975, UNCLOS III Archives, box 69. 20 Either at this point or perhaps even earlier Nandan “enlisted the help of two members of the Secretariat, Hugo Caminos and Gudmundur Eiriksson”, in drafting the negotiating text. Koh and Jayakumar, “The negotiating process”, p.116. 21 Renate Platzöder (ed.), Third United Nations Conference on the Law of the Sea: Documents (Dobbs Ferry, New York: Oceana Publications, 1982–88), vol.4, pp.194–97. 22 Nandan, “The third session”, p.7. 23 Satya Nandan, telephone interview by Butcher, 15 September 2009. 24 “Informal single negotiating text, part II” (A/CONF.62/WP.8/PART II), in UNCLOS III, Official Records, vol.4, p.157. We abbreviate this text as “SNT/Part II”. Note that Part II was in turn divided into parts, which we have referred to as “part II”, “part V”, and so forth (with a lowercase “p”) to distinguish them from the parts of the SNT as a whole. Except for one reference to the SNT/Part I all references to the SNT in this chapter are to the SNT/Part II. 25 Tommy T.B. Koh, “The territorial sea, contiguous zone, straits and archipelagoes under the 1982 Convention on the Law of the Sea”, Malaya Law Review, 29 (1987), 192. 26 Geneva to Washington, 7 April 1975 (Geneva 2374) (AAD). 27 See Sudarmono’s comments cited in Geneva to Washington, 25 April 1975 (Geneva 2955) and Moore’s message to Newsom in Geneva to Washington and Jakarta, 16 April 1975 (Geneva 2656) (AAD).

NOTES TO PP. 296–303

481

28 Hollick, U.S. Foreign Policy and the Law of the Sea, p.300. 29 Geneva to Washington, 26 April 1975 (Geneva 02969) (AAD). 30 Geneva to Washington, 7 April 1975 (Geneva 2374) (AAD). “Rivalry” appears as “rivalty” in the text, presumably because of a scanning error. 31 Jakarta to Washington, 8 April 1975 (Jakarta 4139) (AAD). 32 This account is based on Geneva to Washington, 25 April (Geneva 2955) and 26 April 1975 (Geneva 02969) (AAD). 33 Geneva to FCO, telegram 284 of 24 April 1975, FCO 76/1088. 34 Nandan to Secretary for Foreign Affairs, 17 April 1975, para.4, UNCLOS III Archives, box 69. 35 Nandan, “The third session”, p.4. 36 “Archipelagic state”, attachment (labelled “W43” by the FCO) to H.A. Dudgeon to B. Hitch, 7 May 1975, FCO 76/1088. 37 Djalal, Perjuangan, p.126. W43 did not include the second amendment in L.64. 38 Djalal, Perjuangan, pp.120–21 and 131 (quote on p.131); Djalal, “Implementation of agreements”, pp.45–46; Nandan to Secretary for Foreign Affairs, 6 March 1975, UNCLOS III Archives, box 69. 39 Hasjim Djalal, “Commentary”, in Alfred H.A. Soons (ed.), Implementation of the Law of the Sea Convention through International Institutions: Proceedings of the 23rd Annual Conference of the Law of the Sea Institute, co-sponsored by the Netherlands Institute for the Law of the Sea, June 12–15 1989, Noordwijk aan Zee, the Netherlands (Honolulu: Law of the Sea Institute, University of Hawaii, 1990), pp.266–67. See also Djalal, “The Law of the Sea Convention and navigational freedoms”, in Donald R. Rothwell and Sam Bateman (eds), Navigational Rights and Freedoms, and the New Law of the Sea (The Hague and Boston: Martinus Nijhoff, 2000), p.6. 40 Nandan, “The third session”, p.4. 41 H.A. Dudgeon to B. Hitch, 7 May 1975, FCO 76/1088. 42 Geneva to Washington, 2 May 1975 (Geneva 3159) (AAD). 43 Geneva to Washington, 2 May 1975 (Geneva 3159) (AAD). 44 The document may be found in Nandan and Rosenne (eds), Commentary, vol.2, pp.405–6, and FCO 76/1008. It was circulated to delegates attending Galindo Pohl’s meetings but not to other delegations. 45 Nandan and Rosenne (eds), Commentary, vol.2, pp.402–3. 46 Geneva to Washington, 12 May 1975 (Geneva 3415) (AAD). 47 Nandan and Rosenne (eds), Commentary, vol.2, p.423. 48 As noted in chapter 6, the regulation also in effect amended the ordinance by extending the length of the closing line for bays and river mouths from 10 to 24 miles, thus expanding the area defined as internal waters under the ordinance and reducing the area where the guarantee applied. 49 See Nandan and Rosenne (eds), Commentary, vol.2, p.469. We have found no other sources indicating what the Bahamians might have meant.

482 50 51 52 53

54

55 56 57 58

59 60 61 62 63 64 65 66 67

68 69 70 71 72 73 74 75 76

NOTES TO PP. 303–16

H.A. Dudgeon to B. Hitch, 7 May 1975, FCO 76/1088. Nandan and Rosenne (eds), Commentary, vol.2, pp.402–3. H.A. Dudgeon to B. Hitch, 7 May 1975, FCO 76/1088. Tommy Koh (1984), in Jon H. Van Dyke (ed.), Consensus and Confrontation: The United States and the Law of the Sea Convention (Honolulu: Law of the Sea Institute, University of Hawaii, 1985), p.61. All quotes from the text Nandan prepared come from “Informal single negotiating text, part II” (A/CONF.62/WP.8/PART II), in UNCLOS III, Official Records, vol.4. Nandan to Secretary for Foreign Affairs, 6 March 1975. Geneva to Washington, 12 May 1975 (Geneva 3415) (AAD). A/CONF.62/C.2/L.64/Rev.1 (5 May 1975), in UNCLOS III, Official Records, vol.4, p.192. Djalal, Perjuangan, p.126, cites a Malaysian text that gave Malaysia even more than the one we have quoted. It even refers to the right to conduct military manoeuvres. But that text does not appear in the official records. Perhaps it was an early draft of the one we cite but that is not clear from his book. Djalal does not refer to the Indonesians’ objection to the first part of the Malaysian text (“If the drawing…”) until discussing the fourth session but we have assumed that they objected to the text issued during the third session for the same reason since it opened with exactly the same words as the version submitted at the fourth session. The words “for centuries [sejak berabad-abad]” appear on p.128. Djalal, Perjuangan, pp.120–21 and 131–32. Djalal, Perjuangan, pp.135–36. Nandan, “The third session”, p.7. Nandan, “The third session”, p.7. Nandan, “The third session”, p.7. Nandan, “The third session”, pp.7–8. Nandan to Secretary for Foreign Affairs, 6 March 1975. Nandan, “The third session”, pp.8–9. United Nations, The Law of the Sea: Archipelagic States—the Legislative History of Part IV of the United Nations Convention on the Law of the Sea (New York: United Nations, 1990), p.80. Nandan, “The third session”, p.7. UNCLOS III, Official Records, vol.4, pp.75–80. Nandan, “The third session”, pp.11–12. Nandan, “The third session”, p.11. Nandan, “The third session”, p.13. Nandan to Secretary for Foreign Affairs, 25 June 1976, UNCLOS III Archives, box 69. Nandan, “The third session”, p.4. UNCLOS III, Official Records, vol.4, pp.26–27. Nandan, “The third session”, p.2.

NOTES TO PP. 317–23

483

Chapter 14 1 Nandan to Secretary for Foreign Affairs, 9 June 1975 (quoted words), and Nandan, “The third session”, p.2. 2 “Justice minister reports to president”, Antara, 19 May 1975; “Wawasan Nusantara dalam Konperensi Hukum Laut Jenewa”, Kompas, 20 May 1975; Jakarta to Washington, 20 May 1975 (Jakarta 6054) (AAD). The phrase “Indonesia’s archipelagic concept” comes from the Antara report. This was Antara’s translation of “Wawasan Nusantara”, the term Mochtar used when speaking to the press. 3 Jakarta to Washington, 26 June 1975 (Jakarta 7682) (AAD). 4 Ali Murtopo, quoted in Jakarta to Washington, 14 August 1975 (Jakarta 9940) (AAD). 5 Memorandum of conversation between President Ford, President Suharto, Henry Kissinger, and Brent Scowcroft, 5 July 1975 (National Security Archive) (http://nsarchive.gwu.edu/). 6 Memorandum of conversation, 5 July 1975. 7 Jakarta to Washington, 14 November 1975 (Jakarta 14013) (AAD). 8 Jakarta to Washington, 9 September 1975 (Jakarta 11056) (AAD). 9 Jakarta to Washington, 4 November 1975 (Jakarta 13442) (AAD). 10 Jakarta to Washington, 17 November 1975 (Jakarta 14084) (AAD); Djalal, Perjuangan, p.127; “‘Big power rivalry threat to S-E Asia’”, Straits Times, 18 November 1975, p.1. 11 Djalal, Perjuangan, p.127. 12 Djalal, Perjuangan, pp.127–28. 13 Jakarta to Washington, 4 November 1975 (Jakarta 13442) (AAD). 14 Jakarta to Washington, 14 November 1975 (Jakarta 14013) (AAD). 15 Jakarta to Washington, 27 January 1976 (Jakarta 1118) (AAD). 16 Jakarta to Washington, 27 February 1976 (Jakarta 2656) (AAD). 17 Victor Prescott, “Indonesia-Thailand (Andaman Sea)”, in Charney and Alexander (eds), International Maritime Boundaries, vol.2, p.1466. 18 Mohammad Sadli to Suharto, 20 September 1975, Sek. Neg. no. 977 (ANRI). 19 This and the following paragraph are based on documents in A1838, 1734/83 Part 1 (NAA). 20 For a long list of possible problems see Parliament of the Commonwealth of Australia, Joint Standing Committee on Treaties, Australia-Indonesia Maritime Delimitation Treaty, 12th Report (November 1997), pp.21–22. 21 “Record of conversation on 5 February 1976 between…Abdullah Kamil…and G.A. Brennan”, A1838, 1734/83 Part 1. 22 Canberra to New York, 2 April 1976 (CH339233), A1838, 1734/83 Part 1. 23 Jakarta to Washington, 27 February 1976 (Jakarta 2656) (AAD). Emphasis added. 24 Quoted in Leifer, Malacca, Singapore, and Indonesia, p.145. Leifer identifies his source, from which he quotes extensively, simply as “a statement in March 1976” (p.144). 25 Leifer, Malacca, Singapore, and Indonesia, p.144. 26 Jakarta to Washington, 10 March 1976 (Jakarta 3222) (AAD). 27 Manila to Washington, 11 March 1976 (Manila 3464) (AAD).

484 28 29 30 31

32

33 34 35 36 37 38 39 40

41 42 43

44

45 46 47

48 49

NOTES TO PP. 324–30

UNCLOS III, Official Records, vol.5, p.4. Hollick, U.S. Foreign Policy and the Law of the Sea, p.316. Koh and Jayakumar, “The negotiating process”, pp.119–20. This and the following two paragraphs are based on USUN to Washington, 6 April 1976 (USUN 1405), 6 April 1976 (USUN 1413), 10 April 1976 (USUN 1497), and 13 April 1976 (USUN 1526) (AAD). Satya Nandan, “Report on the Fourth Session of the Third United Nations Conference on the Law of the Sea held on 15 March, 1976”, p.9 (emphasis added), attached to Nandan to Secretary for Foreign Affairs, 25 June 1976, UNCLOS III Archives, box 69. Nandan, “Report on the Fourth Session”, pp.5–6. USUN to Washington, 2 April 1976 (USUN 1359) and 14 April 1976 (USUN 1564) (AAD). Jakarta to Washington, 26 June 1975 (Jakarta 7682) (AAD). Nandan, “Report on the Fourth Session”, p.6. USUN to Washington, 14 April 1976 (USUN 1564) (AAD). Nandan, “Report on the Fourth Session”, p.6. Mochtar probably referred to “Javanese” rather than “people from Java”, since as a Sundanese he was himself “from Java”. USUN to Washington, 2 April 1976 (USUN 1359) (AAD). President Ford signed the legislation that Mochtar referred to, the Fishery Conservation and Management Act, into law on 13 April. Hoping to minimize the damage that it might do to the negotiations taking place in the conference, Ford had insisted that the act not come into effect until March 1977. USUN to Washington, 23 April 1976 (USUN 1723) (AAD). Jakarta to Washington, 9 April 1976 (Jakarta 4733) (AAD). “Negara-negara maritim besar ajukan syarat”, Kompas, 8 April 1976. A summary of this article is in Jakarta to Washington, 8 April 1976 (Jakarta 4622) (AAD). The latest oil spill was reported in the same edition of Kompas. “Record of conversation between Professor Dr Mochtar Kusumaatmadja…and Mr Andrew Peacock…on 15th April, 1976”, A1838, 1734/83 Part 1. For two Indonesian reports: “Australian minister ends 3-day visit” and “Possible extradition treaty”, Jakarta Domestic Service, 16 April 1976 (FBIS). See the account in King, “The Timor Gap, Wonosobo and the fate of Portuguese Timor”, pp.84–88. USUN to Washington, 23 April 1976. Except where otherwise indicated, the following account is based on USUN to Washington, 28 April 1976 (USUN 1783), 30 April 1976 (USUN 1887), 30 April 1976 (USUN 1886) (AAD). Most of the amendments proposed during this debate may also be found in Platzöder (ed.), Documents, vol.4, pp.334–46. USUN to Washington, 23 April 1976. Nandan, “Report on the Fourth Session”, p.7.

NOTES TO PP. 330–42

485

50 The US report of Clingan’s words is extremely ambiguous (“U.S.…opened debate by proposing technical amendment to delete section heading ‘Section 1. Archipelago States’ and suggesting possible change to title to ‘Archipelagos’ or ‘Archipelagic States’”) but in view of the actual text, the rest of his statement, and the subsequent debate we can arrive at no other possible interpretation of what he said. 51 Djalal refers to the threat posed by Mauritius in Perjuangan, p.83. 52 “Passage through straits: big powers should also bear responsibilities”, Malaysian Digest, vol.8, no. 5, 30 April 1976, p.7; Kuala Lumpur to Washington, 15 April 1976 (Kuala Lumpur 2163) (AAD). 53 Djalal, Perjuangan, p.136. The Indonesian is terpaksa merasa puas. 54 According to the US report (USUN 1887), this was a G5 amendment, thus implying that it was supported not only by Japan and the only other member of the G5 to express its support during the review, namely, the Soviet Union, but also by the US, UK, and France. 55 Singapore to Washington, 23 April 1976 (Singapore 2028) (AAD). 56 Platzöder (ed.), Documents, vol.4, pp.336 and 341. The US report (USUN 1887) does not quote the full text. 57 For reasons that are unclear both proposed replacing “routes normally used” with “routes customarily used”. 58 The Indonesian text dealt with the subjects covered by 125(1) and 125(2) of the SNT in 125(1) and those covered in 125(3) of the SNT in 125(2) (civil aircraft) and 125(3) (state aircraft). 59 Convention on International Civil Aviation, opened for signature on 7 December 1944. Note that the Indonesian amendment referred to the “Chicago Conventions”, a term that presumably included the two other agreements to come out of the Chicago conference: the International Air Services Transit Agreement and the International Air Transport Agreement. Indonesia was not a party to either agreement. We are grateful to Vincent Cogliati-Bantz for helping us interpret the Indonesian proposal concerning civil aviation. 60 Article 5 of the convention gave civil aircraft engaged in non-scheduled international flights the right to fly over the territory of another state “without the necessity of obtaining prior permission”. 61 Presumably because they deleted any reference to aircraft in article 125(1) the Indonesians inserted injunctions aimed specifically at state aircraft in their version of article 125(3). These provisions were much more extensive than those in 125(1)(b) of the SNT. Among other things state aircraft were prohibited from causing “any threat to the sovereignty, security, territorial inviolability, and political independence of the archipelagic state”, taking aerial photographs, and taking on fuel as well as engaging in any exercises involving weapons of any kind. 62 A third paragraph made the flag state responsible for any damage or loss caused by any ship or aircraft subject to sovereign immunity. Taken on its own, this suggested that the flag state, as the owner of such ships and aircraft, would not be liable to pay

486

63

64

65 66

67 68 69

70 71

72

73 74 75 76 77 78 79 80

NOTES TO PP. 342–49

compensation if one of its ships or aircraft violated the provisions of the convention or the archipelagic state’s laws or regulations but caused no damage or loss. This, however, would have contradicted the paragraph making the owner of any ship or aircraft that caused damage or loss or violated “the provisions of these articles” liable to pay compensation for such damage, loss, or violation. Presumably they were referring to privately owned ships and aircraft rather than those under sovereign immunity. On this point as well as many others the US notes are rather sketchy. Nor was there much enthusiasm for adding a further paragraph declaring that nothing in part VII prejudiced the right of an archipelagic state to enter into agreements with other states concerning the exploitation of the archipelagic state’s resources or establishing a special regime of passage. Andrés Aguilar M., “Introductory note”, A/CONF.62/WP.8/REV.1/PART II, in UNCLOS III, Official Records, vol.5, p.152. Abdul Kadir Yusuf, quoted in “Passage through straits”; USUN to Washington, 23 April 1976 (USUN 1723); Kuala Lumpur to Washington, 15 May 1976 (Kuala Lumpur 2163) (AAD). A/CONF.62/WP.8/REV.1/PART II, UNCLOS III, Official Records, vol.5, pp.151–73. Nandan, “Report on the Fourth Session”, p.8. A/CONF.62/C.2/L.92 (29 April 1976), UNCLOS III, Officials Records, vol.5, p.203. In keeping with an understanding that there should be no formal amendments to the SNT since it was an informal document Malaysia submitted L.92 as a replacement for the document it had submitted during the Geneva session (A/CONF.62/C.2/L.64/ Rev.1). L.92 did not include the second amendment contained in that document. Djalal, Perjuangan, p.129. Singapore to Washington, 19 April 1976 (Singapore 2111) (AAD). This telegram is dated 19 April but contains references to later reports and events. The date almost certainly should be 29 April. USUN to Washington, 5 May 1976 (USUN 1964) (AAD). According to this report Koh asked the Americans not “to endorse publicly Singapore’s proposal” but whether that refers to its joint proposal with Indonesia or a proposal that the Singaporeans had put forward before they finalized the joint proposal is not clear. Platzöder (ed.), Documents, vol.4, p.339. Djalal, Perjuangan, p.121. Nandan, “Report on the Fourth Session”, p.8. Djalal, “Commentary”, p.266. Nandan, “Report on the Fourth Session”, p.8. Nandan, “Report on the Fourth Session”, p.9. USUN to Washington, 30 April 1976 (USUN 1871) (AAD); Hollick, U.S. Foreign Policy and the Law of the Sea, p.314. UNCLOS III, Official Records, vol.5, p.76 (Amerasinghe).

NOTES TO PP. 350–53

487

Chapter 15 1 “Campaign on archipelago concept to intensify”, Jakarta Domestic Service, 15 May 1976 (FBIS). 2 No source that we have found identifies the meeting at which Suharto proposed the idea of an axis line but the timing of subsequent events, particularly discussions with the Americans, indicates that the meeting following the fourth session was that meeting. For accounts of Suharto’s conceptualization of the axis line see “Kegiatan utamanya kini lebih beralih di dalam negeri”, Kompas, 18 May 1982; Kusumaatmadja, “Laporan Menteri Luar Negeri kepada Presiden tentang kegiatan-kegiatan yang telah dilaksanakan dan peningkatan pengimplementasian Wawasan Nusantara”, in Departemen Luar Negeri, Paparan tentang Wawasan Nusantara (Perjuangan Pengakuan dan Pengimplementasiannya) (Jakarta: Departemen Luar Negeri, May 1982), p.56; and Soeharto, Pikiran, Ucapan, dan Tindakan Saya: Otobiografi seperti dipaparkan kepada G. Dwipayana dan Ramadhan K.H. (Jakarta: Citra Lamtoro Gung Persada, 1989), pp.321–22. 3 Hasjim Djalal, interview by Butcher and Elson, 12 August 2008. 4 The Indonesian and English versions of the decision are in A1838, 1734/83 Part 1, folios 1–5. 5 Nazaruddin Sjamsuddin (ed.), Jejak Langkah Pak Harto: 27 Maret 1973–23 Maret 1978 ([Jakarta]: PT Citra Lamtoro Gung Persada, 1991), pp.359–60. For similar wording also see “Campaign on archipelago concept to intensify”. 6 Singapore to Washington, 21 May 1976 (Singapore 2537) (AAD). Singaporean officials were also “guardedly optimistic” that they would resolve the question of fisheries access. 7 “Justice minister on archipelago concept”, Jakarta Domestic Service, 25 May 1976 (FBIS). 8 Jakarta to Washington, 18 May 1976 (Jakarta 6551) (AAD). Jakarta to Washington, 3 June 1976 (Jakarta 7232) (AAD), apparently reports on the Mochtar-Newsom meeting but because of an “expand error” none of the text is available. 9 Washington to Melbourne, 16 July 1976 (State 176601) (AAD). This message repeats an earlier message from Jakarta to Washington (Jakarta 8698) that is not available in AAD. 10 Except where otherwise indicated, this and the following two paragraphs are based on Kuala Lumpur to Washington, 6 July 1976 (Kuala Lumpur 3826) (AAD). 11 Yturriaga, Straits Used for International Navigation, p.128. 12 For an explicit statement of the aim of US negotiations at this time see Washington to all US diplomatic posts, 30 July 1976, para.8 (State 189282) (AAD). 13 “The [minimum] UKC is the minimum permissible distance between a vessel’s keel and the seabed at the shallowest part of the Straits.” D.J. McDonnell, Singapore, to Canberra, 16 February 1977, A1838, 1734/83 Part 1. 14 Djalal, Perjuangan, p.156. Supertankers tend to “squat” deeper in the water at higher speeds. For this reason a supertanker might be able to maintain a particular minimum

488

15

16 17

18

19 20

21 22 23 24 25 26 27 28 29 30

31 32

33

NOTES TO PP. 353–58

UKC only by reducing its speed, thereby increasing the time it took to deliver its payload to Japan. Jakarta to Washington, 19 July 1976 (Jakarta 9393) (AAD). Newsom was trying to thwart Mochtar’s desire to talk with Kissinger during the fifth session because he feared that Mochtar might try to extract concessions from the secretary of state that he could not gain from the delegation. Jakarta to Washington, 26 July 1976 (Jakarta 9738) (AAD). As Nandan observed in “Report on the Fourth Session”, p.9. This thinking was the reason the Indonesians told him of their willingness to accept the RSNT “if worst comes to worst” “on the basis of the highest confidentiality”. Noegroho Wisnomoerti, “Indonesia and the law of the sea”, in Choon-ho Park and Jae Kyu Park (eds), The Law of the Sea: Problems From the East Asian Perspective: Proceedings of Two Workshops of the Law of the Sea Institute held in Seoul, Korea (Honolulu: Law of the Sea Institute, University of Hawaii, [1987]), p.399. Hamzah, “Indonesia’s archipelagic regime”, pp.36–37. For reports on this press conference see “Tiada negara yang mutlak menolak Wawasan Nusantara”, Kompas, 29 July 1976; “Problems concerning archipelagic state”, Antara, 29 July 1976; Jakarta to Washington, 30 July 1976 (Jakarta 9959) (AAD). Mochtar, Bunga Rampai, pp.63–64. Washington to Melbourne, 16 July 1976 (State 176601) (AAD). Jakarta to Washington, 26 July 1976 (Jakarta 9738) (AAD). We have no other reports on Mochtar’s visit. Miles, Global Ocean Politics, p.226. Washington to Melbourne, 16 July 1976 (State 176601) (quote); Jakarta to Washington, 26 July 1976 (Jakarta 9738) (AAD). “Tiada negara yang mutlak menolak Wawasan Nusantara”. UNCLOS III, Official Records, vol.6, p.3. USUN to Washington, 6 August 1976 (USUN 3127) (AAD). A1838, 1734/83 Part 1, folios 72–76. USUN to Washington, 27 August 1976 (USUN 3493) (AAD). According to this report, the Soviets had agreed in their talks with the Indonesians to replace the words “in the normal mode” with “unimpeded transit”. Presumably what they really agreed to was to delete “in the normal mode” and then to replace “continuous and expeditious transit” with “continuous, expeditious and unimpeded transit”. UNCLOS III, Official Records, vol.5, pp.178 (article 30) and 180 (article 42). USUN to Washington, 5 August 1976 (USUN 3114) (for quote); USUN to Washington, 11 August 1976 (USUN 3183); USUN to Washington, 12 August 1976 (USUN 3207) (AAD). USUN to Washington, 20 August 1976 (USUN 3360) (AAD); Yturriaga, Straits Used for International Navigation, pp.128, 159 (n.89); Shabtai Rosenne and Alexander Yankov (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. 4 (Dordrecht,

NOTES TO PP. 358–64

34 35 36 37

38

39 40 41 42 43 44 45 46

489

Boston, and London: Martinus Nijhoff, 1991), p.482. The proposal is quoted in the second and third of these sources, while the first two sources both give 18 August as the date. USUN to Washington, 8 September 1976 (USUN 3623) (AAD). Platzöder (ed.), Documents, vol.4, pp.396–98. The discussion, much of it focused on Malaysia’s amendments, continued on 9 September. USUN to Washington, 9 September 1976 (USUN 3644). USUN to Washington, 15 September 1976 (USUN 3730) (AAD). The account of Indonesia’s proposals is based partly on New York to Canberra, 13 September 1976 (UN6386), in A1838, 1734/83 Part 1. New York to Canberra, 13 September 1976 (UN6386), in A1838, 1734/83 Part 1. This report was based on what the Australians had learned first from the Americans and then from Hasjim Djalal. USUN to Washington, 16 September 1976 (USUN 3749) (AAD). Jakarta to Canberra, 13 September 1976 (UN6386), A1838, 1734/83 Part 1. “Prime Minister’s visit to Indonesia: officials’ brief”, A1838, 1734/83 Part 1. Miles, Global Ocean Politics, p.226; Koh and Jayakumar, “The negotiating process”, p.121. UNCLOS III, Official Records, vol.6, pp. 24, 28. UNCLOS III, Official Records, vol.6, p.138. Jakarta to Washington, 8 October 1976 (Jakarta 13243) (AAD). “Prime Minister’s visit to Indonesia: officials’ brief”. This brief was prepared for Malcolm Fraser’s trip to Jakarta in October.

Chapter 16 1 Jakarta to Washington, 8 October 1976 (Jakarta 13243) (AAD). 2 Jakarta to Washington, 30 November 1976 (Jakarta 15468) (AAD). In his message to the State Department Newsom also suggested that Kissinger not reply to Malik’s letter and that he, Newsom, be authorized to remind the foreign minister of the recent progress in discussions between the two governments. 3 Jakarta to Washington, 13 December 1976 (Jakarta 16065) (AAD). 4 Max Morris, memorandum of conversation with Zahar Arifin, 31 January 1977, Records of Ambassador Richardson, entry 52, RG 59 (NARA). Obtained under Freedom of Information Act. 5 Morris, memorandum of conversation with Zahar Arifin, 31 January 1977. 6 This paragraph is based on Djalal, Perjuangan, pp.155–56 (quote on p.156); McDonnell to Canberra, 16 February 1977; Mochtar Kusumaatmadja and Munadjat Danusaputro, “Elements of an environmental policy and navigational scheme for Southeast Asia, with special reference to the Straits of Malacca”, in Douglas M. Johnston (ed.), Regionalization of the Law of the Sea, Proceedings of the Eleventh Annual Conference of the Law of the Sea Institute, University of Hawaii, November 14–17, 1977 (Cambridge, Mass.: Ballinger Publishing Co., 1978), pp.186–87 (an unedited version of this paper is in Kusumaatmadja, Bunga Rampai, pp.227–74); Leifer, Malacca, Singapore, and Indonesia.

490

NOTES TO PP. 365–73

7 Leifer, Malacca, Singapore, and Indonesia, p.205, for the full text. 8 Kusumaatmadja, Konsepsi Hukum Negara Nusantara pada Konperensi Kukum Laut ke-III (Jakarta: Idayu Press, 1977). The text of this lecture also appears (without photographs and the map) in Kusumaatmadja, Bunga Rampai. 9 Miles, Global Ocean Politics, p.278. 10 “Moscow backs Jakarta sea zone concept”, Straits Times, 21 March 1977 (for quotations), and “Soviet support for archipelagic concept cited”, Antara, 21 March 1977 (FBIS). The latter report mentions that Danusaputro and a brigadier general, presumably Wibhawa (though he is identified as “Wibowo” in the report), also took part in the Moscow talks. 11 Miles, Global Ocean Politics, p.280. 12 Interview by Butcher and Elson, Jakarta, 11 August 2011. 13 Quoted in Leifer, Malacca, Singapore, and Indonesia, p.168. 14 Jakarta to Washington, 12 January 1977 (Jakarta 0534) (AAD). 15 The following account is based generally on Kuala Lumpur to London, 29 March 1977 (Kuala Lumpur 1938); State to Bonn (and other posts), 12 April 1977 (State 081604); and USUN to Washington, 27 May 1977 (USUN 1684) (AAD). 16 State to Bonn (and other posts), 12 April 1977. 17 “U.S. agrees on need to defend Malacca Straits”, International Service, Kuala Lumpur, 29 March 1977 (FBIS). 18 Masie Kwee, “We’ll keep up interest in Pacific: Richardson”, Straits Times, 31 March 1977. It would appear from this report that Richardson spent much of his time in Singapore reassuring the government that the US would maintain a military presence in the region. 19 Washington to Jakarta, 23 March 1977 (State 064205) (AAD). 20 Jakarta to Washington, 29 March 1977 (Jakarta 3926) (AAD). 21 On the preparations see Jakarta to Washington, 23 March 1977 (Jakarta 3686), and Jakarta to Washington, 25 March 1977 (Jakarta 3643) (AAD) and Elliot L. Richardson Papers, container I:388, Manuscript Division, Library of Congress, Washington, DC. We are indebted to Patrick Kerwin of the Library of Congress for providing us with copies of the papers related to Richardson’s visit to Jakarta. 22 The following is based on State to Bonn (and other posts), 12 April 1977, and Jakarta to Kuala Lumpur, 1 April 1977 (Jakarta 4173) (AAD). 23 Emphasis added. 24 “Konsultasi delegasi hukum-laut AS dengan Menteri Kehakiman”, Kompas, 1 April 1977. 25 Jakarta to Washington, 1 April 1977 (Jakarta 4178) (AAD). 26 Richardson to Newsom, 25 April 1977, Elliot L. Richardson Papers, container I:388. 27 Elliot L. Richardson Papers, container I:378. Those more adept at deciphering Richardson’s handwriting than we are may be able to deduce more from these notes. 28 Jakarta to Kuala Lumpur, 1 April 1977 (Jakarta 4173), and Kuala Lumpur to Washington, 5 April 1977 (Kuala Lumpur 2084) (AAD).

NOTES TO PP. 374–83

491

29 London to Washington, 30 March 1977 (London 05201), and Moscow to Washington, 15 April 1977 (Moscow 5103) (AAD). 30 “Delegations to the Third United Nations Conference on the Law of the Sea, Sixth session”, A/CONF.62/INF.7 (21 June 1977). 31 And at least two other civilian members of the delegation: Sanitioso of the Department of Communications and T.G. Napitupulu of the Department of Justice. 32 Nugroho Wisnumurti, email message to Butcher, 3 March 2013. 33 UNCLOS III, Official Records, vol.7, p.4. 34 USUN to Washington, 14 June 1977 (USUN 1887) (AAD). The Department of State has released weekly summaries of the session but not those reports that we assume exist that give detailed accounts of the negotiations with the Indonesian delegation. 35 This account is based on “99th informal meeting [of the Second Committee]—13 June 1977—3:00 p.m.”, in UNCLOS III Archives, box 69. 36 “100th informal meeting [of the Second Committee]—23 June 1977—3:00 p.m.”, in UNCLOS III Archives, box 69. 37 Except where otherwise indicated the remainder of this paragraph and the following paragraph are based on “102nd informal meeting [of the Second Committee]—27 June 1977—10:30 p.m.”, in UNCLOS III Archives, box 69. 38 Platzöder (ed.), Documents, vol.4, pp.472–76. The amendments are dated 27 June 1977. 39 Platzöder (ed.), Documents, vol.4, p.483; USUN to Washington, 28 June 1977 (USUN 2076) (AAD). 40 For accounts of this dispute see Koh and Jayakumar, “The negotiating process”, pp.121–24; Miles, Global Ocean Politics, pp.283–85. 41 UNCLOS III, Official Records, vol.7, p.53. 42 UNCLOS III, Official Records, vol.7, p.53. 43 Platzöder (ed.), Documents, vol.4, p.483; Yturriaga, Straits Used for International Navigation, p.134. 44 Nandan and Rosenne (eds), Commentary, vol.2, p.351. 45 Washington to all diplomatic posts, 16 June 1977, para.3. 46 USUN to Washington, 24 June 1977 (USUN 2035). 47 USUN to Washington, 8 July 1977 (USUN 2176) (AAD). 48 Platzöder (ed.), Documents, vol.4, pp.476–80. 49 Djalal, “Commentary”, in Soons (ed.), Implementation of the Law of the Sea Convention through International Institutions, p.267. 50 Yturriaga, Straits Used for International Navigation, p.133. USUN to Washington, 8 July 1977 (USUN 2179) (AAD), confirms Yturriaga’s account of the meeting. Nandan reported, inaccurately it would appear, that the only speaker at the meeting was Spain and that it received no support for its proposals. “Report by Fiji on the Sixth Session of the Third United Nations Conference on the Law of the Sea”, p.5, UNCLOS III Archives, box 30. 51 USUN to Washington, 8 July 1977. 52 Platzöder (ed.), Documents, vol.10, p.507.

492

NOTES TO PP. 383–90

53 Miles, Global Ocean Politics, p.280. 54 This was the date of the final meeting according to Jakarta to Washington, 29 July 1977 (Jakarta 10056) (AAD). 55 Nugroho Wisnumurti, email message to Butcher, 18 September 2012. 56 New York to Canberra, 12 July 1977 (UN8652), A1838, 1734/83 Part 1, folio 132. 57 Indonesia, “Articles 119–126 (RSNT II)”, 9 July 1977, in Platzöder (ed.), Documents, vol.4, pp.480–83. As we explain shortly, Mochtar forwarded a copy of the package to Aguilar on 9 July. We have been unable to locate either his letter or the copy he forwarded to Aguilar but have concluded that the text reproduced in Platzöder is the one he forwarded. We have reached this conclusion on the basis of the date, the actual content of the text, and information in Washington to Jakarta, 20 August 1977 (State 198669) (AAD). 58 Morris, memorandum of conversation with Zahar Arifin. 59 E. Lauterpacht, record of conversation with Minister Mochtar Kusumaatmadja, 1 December 1976, A1838, 1734/83 Part 1. Lauterpacht served as legal adviser in 1975–77. 60 See Djalal, “Commentary”, p.268. 61 Wisnumurti, “Prof. Dr. Mochtar Kusumaatmadja”, pp.85–86. The phrase “make or break” is in English. We are grateful to Ambassador Nugroho for clarifying the sequence of events for us in a series of email messages to Butcher in September 2012 and March 2013. 62 New York to Canberra, 12 July 1977 (UN8652). 63 Specifically, Fiji, Papua New Guinea, and the Bahamas. Washington to Jakarta, 20 August 1977. 64 [Nandan], “Report by Fiji on the Sixth Session”, pp.4–5. 65 USUN to Washington, 13 July 1977 (USUN 2232) (AAD). 66 “Memorandum by the President of the Conference” (A/CONF.62/WP.10/Add.1), 22 July 1977, UNCLOS III, Official Records, vol.7, p.65. See also Koh and Jayakumar, “The negotiating process”, p.124. 67 “Informal composite negotiating text” (A/CONF.62/WP.10), UNCLOS III, Official Records, vol.7. 68 “Memorandum by the President of the Conference”, p.65. 69 “Memorandum by the President of the Conference”, p.69. 70 For a bitter critique of this settlement see Yturriaga, Straits Used for International Navigation, especially p.134. 71 “Memorandum by the President of the Conference”, p.69. 72 Djalal, “Commentary”, p.267. 73 Jakarta to Washington, 26 October 1977 (Jakarta 14468) (AAD). 74 Hollick, U.S. Foreign Policy and the Law of the Sea, p.327. 75 Hollick, U.S. Foreign Policy and the Law of the Sea, pp.327–28. 76 On how Indonesia could benefit from an Irish proposal concerning the outer edge of the continental margin see Djalal, Perjuangan, pp.175–77. 77 “Pengumunan Pemerintah RI mengenai berlakunya batas 200 mil”, Kompas, 27 July 1977. A translation is in A1838, 1734/83 Part 1. The State Department disagreed with

NOTES TO PP. 390–96

78 79 80 81 82 83 84 85

493

Mochtar’s view of the status of the concept in international law but apparently said nothing to him about this. Washington to Jakarta, 20 August 1977. Kusumaatmadja, “Laporan Menteri Luar Negeri”, p.40. Djalal, Perjuangan, pp.173–74. This volume was published in 1979 but was largely based on papers written shortly after the sixth session. Djalal, Perjuangan, pp.160–63. “200-mile economic zone to be declared”, Kuala Lumpur, Domestic Service, 21 July 1977 (FBIS). “Pengumunan Pemerintah RI mengenai berlakunya batas 200 mil”. Statement to the press by Ambassador at Large Elliot L. Richardson, 20 July 1977, Department of State Bulletin, 77 (1977), 391. “A nation’s waters”, New Straits Times, 26 July 1977 (FBIS). [Nandan], “Report by Fiji on the Sixth Session”, p.5.

Chapter 17 1 Djalal, Perjuangan, p.174. 2 Mochtar Kusumaatmadja and Munadjat Danusaputro, “Elements of an environmental policy and navigational scheme for Southeast Asia, with special reference to the Straits of Malacca”, in Douglas M. Johnston (ed.), Regionalization of the Law of the Sea, Proceedings of the Eleventh Annual Conference of the Law of the Sea Institute, University of Hawaii, November 14–17, 1977 (Cambridge, Mass.: Ballinger Publishing Co., 1978), pp.187–90; Djalal, Perjuangan, pp.156–57. 3 Leifer, Malacca, Singapore, and Indonesia, pp.206–8. 4 Djalal, Perjuangan, p.157. 5 Djalal, Perjuangan, p.157; “Further details on talks”, Kyodo, 13 August 1977 (FBIS); Harvey Stockwin, “Malacca Straits: a call for action”, Asian Wall Street Journal, 28 February 1978. Stockwin provides a critique of many aspects of the scheme. 6 Leifer, Malacca, Singapore, and Indonesia, p.206 (emphasis added); Stockwin, “Malacca Straits: a call for action”. 7 Jakarta to Canberra, 12 August 1977 (JA14363), A1838, 1734/83 Part 1. 8 Jakarta to Canberra, 28 September 1977 (JA15116), A1838, 1734/83 Part 1. 9 Djalal, “Indonesia and the new extension of coastal state sovereignty and jurisdiction at sea”, in Douglas M. Johnston (ed.), Regionalization of the Law of the Sea, Proceedings of the Eleventh Annual Conference of the Law of the Sea Institute, University of Hawaii, November 14–17, 1977 (Cambridge, Mass.: Ballinger Publishing Co., 1978), pp.287, 292. 10 “Indonesia to proclaim 200-mile territorial boundary”, Jakarta Domestic Service, 28 November 1977 (FBIS). 11 Jakarta to Canberra, 12 August 1978. 12 The following is based in part on Djalal, “Indonesia and the new extension of coastal state sovereignty”. 13 Laporan Hasil Loka Karya-1 Pengimplementasian Wawasan Nusantara tgl. 27 February s/ d 4 Maret 1978 di Jakarta ([Jakarta]: Pankorwilnas, [1978]).

494

NOTES TO PP. 396–400

14 “Suharto announces Third Development Cabinet”, Jakarta Domestic Service, 29 March 1978 (FBIS); “Holds talks with Mochtar”, Antara, 14 April 1978 (FBIS); “Suharto briefed on Hussein visit, Mochtar’s foreign tour”, Jakarta Domestic Service, 6 April 1978 (FBIS); “Panggabean acting minister”, Antara, 20 April 1978 (FBIS). 15 The following is based on Miles, Global Ocean Politics, pp.286–300; Hollick, U.S. Foreign Policy and the Law of the Sea, pp.332–35; Yturriaga, Straits Used for International Navigation, p.135; Koh and Jayakumar, “The negotiating process”, pp.125–26. 16 Quoted in Koh and Jayakumar, “The negotiating process”, p.126. 17 Hollick, U.S. Foreign Policy and the Law of the Sea, p.336. 18 Yturriaga, Straits Used for International Navigation, p.139. 19 Platzöder (ed.), Documents, vol.5, pp.26–29. 20 UNCLOS III, Official Records, vol.9, p.70 (Inglés). 21 UNCLOS III, Official Records, vol.9, p.49 (Aguilar) and p.70 (Inglés). 22 UNCLOS III, Official Records, vol.9, pp.59 (Ecuador), 65 (Greece), 72 (Spain). 23 UNCLOS III, Official Records, vol.9, p.73. 24 Hollick, U.S. Foreign Policy and the Law of the Sea, p.335. 25 David Irvine (Jakarta) to Canberra, 24 October 1977, para.6, A1838, 1734/83 Part 1. 26 “Talks on continental shelf boundary with SRV to continue”, Jakarta Domestic Service, 15 August 1978 (FBIS); Victor Prescott and Clive Schofield, “Undelimited maritime boundaries of the Asian Rim in the Pacific Ocean”, Maritime Briefing (International Boundaries Research Unit, University of Durham), vol.3, no. 1 (2001), 45. 27 “Official says sea boundary meeting with SRV not stalled”, Jakarta Domestic Service, 18 January 1979 (FBIS). 28 Australian Year Book of International Law, 8 (1978–80), 279–82. 29 “Further details”, Antara, 15 February 1979 (FBIS); “Talks with Australia on continental shelf start in Jakarta”, Antara, 22 May 1979 (FBIS). 30 King, “The Timor Gap, Wonosobo and the fate of Portuguese Timor”, pp.83 and 98. Mochtar’s comments are recorded in Michael Richardson, “Jakarta’s Tough Sea Boundary Claim”, Australian Financial Review, 20 December 1978. According to Richard Woolcott, who was Australia’s ambassador to Indonesia between 1975 and 1978, Mochtar had told him that Australia had “taken Indonesia to the cleaners” in the 1972 negotiations during a conversation at Mochtar’s house in 1977. Woolcott, “Fixed Relations”, The Australian, 15 March 1997 (Factiva). In January 1978 Woolcott reported that Mochtar had commented to him and a visiting Australian minister that “Indonesia had been criticized by the Japanese for being ‘too generous’ towards Australia in its previous seabed boundary negotiations. I replied that the Japanese had their own interests in mind, such as their own negotiations with Korea, in making this sort of comment. The agreement was a sound and fair one as he, Mochtar, had said in the past.” Woolcott to Canberra, 27 January 1978 (JA17002), in A1838, 1733/3/2 Part 2 (NAA).

NOTES TO PP. 401–6

495

31 UNCLOS III, Official Records, vol.11, p.63. 32 “Seabed boundary talks with Australia end in Jakarta 25 May”, Antara, 26 May 1979 (FBIS). 33 Quoted in Elliot L. Richardson, “Power, mobility and the law of the sea”, Foreign Affairs, 58 (1979–1980), 902. 34 UNCLOS III, Official Records, vol.12, p.5. 35 UNCLOS III, Official Records, vol.12, p.5. 36 UNCLOS III, Official Records, vol.12, p.6. 37 Richardson, “Power, mobility and the law of the sea”, p.917. 38 Nugroho Wisnumurti, interview by Butcher and Elson, 20 November 2008; Kusumaatmadja, “Laporan Menteri Luar Negeri”, p.20. 39 All the clauses quoted or cited in this paragraph may be found in “East Timor (Portugal v. Australia): counter-memorial of the Government of Australia”, 1 June 1992, pp.213–18 (appendix C) (www.icj-cij.org/docket/files/84/6837.pdf). Emphasis added. 40 Except for the removal of the comma after “adjacent seas” in the agreement with the UK. 41 “Archipelagic concept intact regardless of sea conference”, Antara, 10 April 1978 (FBIS). 42 Djalal, “Commentary”, in Thomas A. Clingan, Jr. (ed.), Law of the Sea: State Practice in Zones of Special Jurisdiction (Honolulu: Law of the Sea Institute, University of Hawaii, 1982), p.513. “The problem is, of course,” Lewis Alexander wryly observed in the discussion after Djalal’s commentary (p.518), “that every country would be a little selective (mine no less than any other) in determining those parts of the ICNT which had become a part of customary international law and those which had not.” 43 Declaration by the Government of Indonesia concerning the Exclusive Economic Zone of Indonesia, 21 March 1980 (http://www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/IDN_1980_DeclarationEEZ.pdf). 44 “Mochtar announces 200-mile exclusive economic zone”, Antara, 21 March 1980 (FBIS). 45 “Territorial waters accord to be concluded with Indonesia”, Kuala Lumpur International Service, 16 March 1980 (FBIS). 46 Laporan Team Ahli Hankam/Pankorwilnas Menghadiri Sidang ke 10 Konperensi Hukum Laut III PBB ([Jakarta]: Pankorwilnas, [1981]), p.11. This document is the only official Indonesian report on UNCLOS III that we were able to obtain. 47 UNCLOS III, Official Records, vol.14, p.29. 48 UNCLOS III, Official Records, vol.14, p.67. 49 UNCLOS III, Official Records, vol.14, pp.19, 38. 50 UNCLOS III, Official Records, vol.14, pp.58–59. 51 UNCLOS III, Official Records, vol.14, p.28. 52 UNCLOS III, Official Records, vol.14, pp.42 (Australia) and 49 (UK). See also statement by Hungary on p.77.

496

NOTES TO PP. 406–13

53 According to Regulation No.8, foreign warships would be able to navigate along sea lanes without prior notification. The government had, however, established no sea lanes except for foreign fishing boats. 54 Hollick, U.S. Foreign Policy and the Law of the Sea, p.347. 55 “Draft Convention on the Law of the Sea (Informal Text)” (A/CONF.62/WP.10/ Rev.3), p.xxi, in CD-ROM of Official Documents of UNCLOS III (Sales No. E.04.V.20). 56 Australian Year Book of International Law, 8 (1978–80), 320. 57 Prescott, “Australia-Indonesia (fisheries)”, in Charney and Alexander (eds), International Maritime Boundaries, vol.2, 1229–32. 58 “Territorial waters accord to be concluded with Indonesia”, Kuala Lumpur International Service, 16 March 1980 (FBIS). 59 “Talks on ‘archipelagic concept’ held with Malaysia”, AFP, 29 June 1981 (FBIS); “Further archipelagic talks held with Malaysia”, Antara, 3 July 1981 (FBIS). 60 The following is based mainly on Miles, Global Ocean Politics, pp.346–51. 61 UNCLOS III, Official Records, vol.15, p.57. 62 “United States delegation report on the Tenth Session of the Third United Nations Conference on the Law of the Sea, March 9-April 24, 1981, New York”, p.6, UNCLOS III Archives, box 61. 63 The following is based on Laporan Team Ahli Hankam/Pankorwilnas Menghadiri Sidang ke 10, pp.10–11, and various documents appended to this report. 64 This account is based on Miles, Global Ocean Politics, pp.351–53 (quoted words on p.351). 65 The following is based on Prescott, “Australia-Indonesia (fisheries)”, pp.1229–35. 66 Speaking at the Indonesia Update Conference, Australian National University, Canberra, 19 September 2008. 67 Wisnumurti, “Prof. Dr. Mochtar Kusumaatmadja”, pp.87–88. 68 For the text of the treaty see United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: The Practice of Archipelagic States (New York: United Nations, 1992), pp.144–55. 69 A Malaysian source told Kompas that the Malaysia had tried to secure a guarantee (jaminan) that it could conduct exercises with third states but that Indonesia had refused. “Perjanjian regim hukum negara kepulauan RI-Malaysia”, Kompas, 26 February 1982. 70 Kusumaatmadja, “Laporan Menteri Luar Negeri”, p.25. Also Mochtar Kusumaatmadja, “Wawasan Nusantara: pembangunan hukum laut internasional baru (3)”, Jurnal Ekuin, 9 June 1982. 71 Wisnomoerti, “Indonesia and the law of the sea”, p.400. 72 “Perjanjian regim hukum negara kepulauan RI-Malaysia”. Later that day Mochtar took Ghazali to call on Suharto at the president’s home on Jalan Cendana. Nazaruddin Sjamsuddin (ed.), Jejak Langkah Pak Harto: 29 Maret 1978–11 Maret 1983 ([Jakarta]: PT Citra Lamtoro Gung Persada, 1992), pp.528–29.

NOTES TO PP. 413–18

497

73 Hamzah, “Indonesia’s archipelagic regime”, p.40. Hamzah does not identify the record of discussion as his source but we have been told that these provisions are in that document, to which he refers on p.37. 74 “East Timor (Portugal v. Australia): counter-memorial of the Government of Australia”, pp.218, 217, 215. 75 This account is based mainly on Miles, Global Ocean Politics, pp.353–71. 76 “U.S. policy and the Law of the Sea”, Department of State Bulletin, 82 (1982), 54–55. 77 UNCLOS III, Official Records, vol.16, p.77. 78 UNCLOS III, Official Records, vol.16, p.112. 79 UNCLOS III, Official Records, vol.16, pp.90, 232. For earlier statements by Ecuador and India on the question of archipelagos belonging to continental states see pp.40 and 45. 80 UNCLOS III, Official Records, vol.16, p.155. 81 UNCLOS III, Official Records, vol.16, p.162 (statement by Zakaria Mohamed Yatim) and pp.250–53 (documents submitted to Koh). 82 Mochtar Kusumaatmadja, “Realisasinya harus benar2 terwujud di dalam semua sektor pembangunan”, Sinar Harapan, 4 June 1982. “It needs to be known”, he wrote in the same article, that the UKC was primarily the result of pressure from Indonesia. 83 Kusumaatmadja, “Laporan Menteri Luar Negeri”, p.54. 84 Kusumaatmadja, “Wawasan Nusantara: pembangunan hukum laut internasional baru (3)”. 85 UNCLOS III, Official Records, vol.17, p.14. 86 The names come from A/CONF.62/INF.17 (24 January 1983). 87 UNCLOS III, Official Records, vol.17, pp.25–26. 88 UNCLOS III, Official Records, vol.17, p.43. 89 UNCLOS III, Official Records, vol.17, pp.68–70. While noting the failure of the convention to recognize its territorial sea claim, he did not indicate that the Philippines would drop that claim. In his statement Tolentino claimed that archipelagic sea lanes passage “can be exercised by foreign ships in archipelagic waters only in such sea lanes as the archipelagic State may designate and establish”. In declarations submitted in early 1983 the Federal Republic of Germany and the USA both challenged this reading of the convention (UNCLOS III, Official Records, vol.17, pp.240–41, 243–44). Article 53(4) stipulates that the archipelagic sea lanes “shall include all normal passage routes used as routes for international navigation or overflight”. In the event that an archipelagic state does not designate any sea lanes then according to article 53(12) “the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation”. 90 UNCLOS III, Official Records, vol.17, pp.104–5. 91 UNCLOS III, Official Records, vol.17, p.44. 92 UNCLOS III, Official Records, vol.17, p.118. 93 UNCLOS III, Official Records, vol.17, pp.38–39 (India), 90–91 (Spain), 96–97 (Ecuador).

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NOTES TO PP. 418–28

94 UNCLOS III, Official Records, vol.17, pp. 116–17. 95 UNCLOS III, Official Records, vol.17, pp.135–36. 96 “Mochtar returns, comments on sea law convention”, Antara/OANA, 16 December 1982 (FBIS); “Menlu Mochtar sambut gembira ditandatanganinya Konvensi Hukum Laut Internasional”, Antara, 16 December 1982.

Chapter 18 1 Jakarta to Washington, 7 September 1976 (Jakarta 11735) (AAD). 2 See comments by Hasjim Djalal in Jon M. Van Dyke (ed.), Consensus and Confrontation: The United States and the Law of the Sea Convention (Honolulu: Law of the Sea Institute, University of Hawaii, 1985), pp.278–79. 3 Djalal, “Kenang-kenangan”, pp.95–96. 4 Hasjim Djalal, interview by Butcher and Elson, 12 November 2008. 5 Vivek Viswanathan, “Crafting the law of the sea: Elliot Richardson and the search for order on the oceans, 1977–1980” (Mossavar-Rahmani Center for Business & Government, Harvard Kennedy School, 2009), pp.49–52. 6 We take this phrase from Myron Nordquist, who used it during an interview by Butcher, Charlottesville, 6 October 2009. 7 Djalal, “Deklarasi Djuanda dalam perspektif sejarah”, in Kasijanto Sastrodinomo (ed.), Stengah Abad Deklarasi Djuanda, 1957–2007 (Jakarta: Direktorat Jenderal Sejarah dan Purbakala, Departemen Kebudayaan dan Pariwisata Republik Indonesia, 2008), p.19.

Chapter 19 1 Law No.5 of 1983 on the Indonesian exclusive economic zone, 18 October 1983. The quoted words come from the accompanying explanatory note. Law No.5 and other current laws, regulations, and maritime boundary agreements are available at http://www.un.org/depts/ los/LEGISLATIONANDTREATIES/STATEFILES/IDN.htm. 2 Djalal, Indonesia and the Law of the Sea, p.227 (1988). “Up to this very day,” he added, “the Indonesian Navy is still not convinced that Indonesia has to give up the Indonesian straits.” 3 “East Timor (Portugal v. Australia): counter-memorial of the Government of Australia”, pp.213–17. 4 “Tax Convention with the Republic of Indonesia”, article 3(1)(a) and “Notes of Exchange” (www.irs.gov/pub/irs-trty/indo.pdf); J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, 2nd edition (The Hague and Boston: M. Nijhoff, 1996), p.212. 5 This brief account is based on Bob Lowry, “Why Indonesia closed the straits in September 1988”, Studies in Conflict and Terrorism, 16 (1993), 171–85. 6 Quoted in Lowry, “Why Indonesia closed the straits”, p.175. 7 These and other questions related to international law are examined in Donald R. Rothwell, “The Indonesian straits incident: transit or archipelagic sea lanes passage?”, Marine Policy, 14 (1990), 491–506.

NOTES TO PP. 428–32

499

8 The following is based mainly on Miles, Global Ocean Politics, pp.504–5; Djalal, “Hukum laut”, pp.415–16; Djalal, Indonesia and the Law of the Sea, pp.275–79. 9 Miles, Global Ocean Politics, p.505. 10 “Government awards 65 marine experts”, Jakarta Post, 29 November 1994 (Factiva). 11 “RI territory 4.9 million sq. km.”, Jakarta Post, 1 December 1994 (Factiva). 12 For accounts of the negotiations see Djalal, “Indonesia’s archipelagic sea lanes”, in Robert Cribb and Michele Ford (eds), Indonesia beyond the Water’s Edge: Managing an Archipelagic State (Singapore: Institute of Southeast Asian Studies, 2009), chapter 4; Kresno Buntoro, “An analysis of legal issues relating to navigational rights and freedoms through and over Indonesian waters”, PhD thesis, University of Wollongong, 2010, chapter 5; Etty R. Agoes, “International Maritime Organization (IMO) dan peranannya penetapan alur-alur laut kepulauan Indonesia (ALKI)”, in Komar, Agoes, and Damian (eds), Mochtar Kusumaatmadja, Pendidik & Negarawan, pp.589–98. 13 We have not seen the official text of the rules but for what appears to be an authoritative version see Dhiana Puspitawati, “The east/west archipelagic sea lanes passage through the Indonesian Archipelago”, Maritime Studies, 1 (2005) (http://www.austlii.edu.au/au/journals/MarStudies/2005/1.html). 14 See Sam Bateman, “Security and the law of the sea in East Asia: navigational regimes and exclusive economic zones”, in David Freestone, Richard Barnes, and David M. Ong (eds), The Law of the Sea: Progress and Prospects (Oxford and New York: Oxford University Press, 2006), chapter 19; Hasjim Djalal, “Alur laut dan insiden 3 Juli”, Tempo Interaktif, 14 July 2003 (http://majalah.tempointeraktif.com). We know of no detailed account of this episode. Several basic questions such as whether the US had obtained permission to conduct the exercise from some Indonesian agency and exactly where the incident took place remain unanswered. 15 “Duel F-16 Indonesia vs F/A 18 Hornet US Navy Bawean 2003”, 10 December 2011 (http://mainanmiliter.blogspot.com.au/2011/12/ duel-f-16-indonesia-vs-fa-18-hornet-us.html); “Insiden Bawean” (http://adiewicaksono.wordpress.com/2009/01/15/insiden-bawean/); “Indonesian F-16s Intercept US Hornets”, 11 September 2003 (http://forum.pakistanidefence.com/ index.php?showtopic=18692) (this report was originally available at but that site no longer exists). 16 Arif Havas Oegroseno, “Archipelagic sea lanes passage designation: the Indonesian experience”, in Myron H. Nordquist, Tommy T.B. Koh, and John Norton Moore (eds), Freedom of the Seas, Passage Rights and the 1982 Law of the Sea Convention (Leiden and Boston: Martinus Nijhoff, 2009), p.391. 17 “UU Perairan Nusantara perlu ditinjau kembali”, Sinar Harapan, 29 July 1982. 18 Hasjim Djalal, interview by Butcher and Elson, 11 August 2011. 19 Sumardiman, “Beberapa catatan tentang penetapan batas wilayah laut”, in Sahono Soebroto (ed.), Wawasan Nusantara (Jakarta: Yayasan Harapan Nusantara, 1982),

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20

21 22 23

24 25 26 27

NOTES TO PP. 432–34

pp.63–80. This source provides a clear account of various anomalies in Law No.4. Although it had no bearing on the drawing of baselines, an odd feature of the map accompanying Law No.4 was the presence of a mythical “P. Stephens” north of Irian Barat (see figure 5.2). Hasjim Djalal, who apparently was the first to suggest there really was no such island, told us that its presence on the map (at 138° E, 0° N) was due to misplotting Pulau Stephanie (which lies at about 130° E, 0° N). Interview by Butcher and Elson, 22 November 2008. For analyses of the changes in Indonesia’s system of baselines see Tri Patmasari, Eko Artanto, Sora Lokita, Sobar Sutisna, and Chairul Hafidin, “The Indonesian archipelagic baselines: technical and legal issues and the changing environment”, paper presented at 5th ABLOS Conference, IHO, Monaco, October 2008) (http://www.gmat.unsw.edu.au/ablos/ABLOS08Folder/ablos08_papers.htm) and Clive Schofield and I Made Andi Arsana, “Closing the loop: Indonesia’s revised archipelagic baseline system”, Australian Journal of Maritime & Ocean Affairs, 1 (2009), 57–62. The way in which Indonesia drew its baselines around East Timor, Schofield and Arsana point out, had the effect of trapping the enclave of Oecussi within Indonesia’s archipelagic waters, apparently in contravention of the Law of the Sea Convention (article 47(5)). Hasjim Djalal, “Amandemen ke-4 UUD 1945”, Kompas, 16 April 2002. Djalal, “Amandemen ke-4 UUD 1945”. This much is apparent from the debate in Majelis Permusyawaratan Rakyat Republik Indonesia, Risalah Rapat Pleno ke-30 Panitia Ad Hoc I Badan Pekerja MPR, 19 June 2002 (Jakarta: Sekretariat Jenderal MPR, 2002). We are grateful to Jakob Tobing for helping us to understand the work of the drafting committee (PAH I), which he chaired. Email message to Elson, 28 March 2014. For a list as of 2008 see Arif Havas Oegroseno, “Indonesia’s maritime boundaries”, in Cribb and Ford (eds), Indonesia beyond the Water’s Edge, p.57. “Mochtar returns”, Antara/OANA, 16 December 1982; “Menlu Mochtar sambut gembira”, Antara, 16 December 1982. “1st Meeting of the CSCAP Study Group on Maritime Security, 7–8 June 2013, Singapore”, Australian Journal of Maritime and Ocean Affairs, 5(2) (2013), 56.

Notes on figures figures on Notes

Figure 1.1 Redrawn from a photocopy of the sketch in A1, Nota 2, in V 9 May 1905, no. 15, AMK, inv. 2.10.36.04, no. 311 (NA). Figure 1.2 Adapted from the provisions in Staatsblad van Nederlandsch-Indië, 1918, no. 263. Figure 1.3 Adapted from the provisions in Staatsblad van Nederlandsch-Indië, 1927, no. 144, article 3. Figure 2.1 Adapted from the provisions in Staatsblad van Nederlandsch-Indië, 1935, no. 497, article 1. Figure 2.2 The map was prepared by Dr I Made Andi Arsana by applying the provisions in the Territorial Sea and Maritime Disticts Ordinance to British Admiralty Chart (BAC) 4509 of 2005, a map in the University of Leiden’s collection of Dutch colonial maps titled “West- en zuidkust Borneo (Straat Karimata): Karimata-eilanden tot Hoek Poeting” (1910) available at http://maps.library.leiden.edu/apps/s7, a map from the same collection titled “Gaspar Straaten” (1881) (used for locating the three channels of the Gaspar Straits), and images provided by Google Earth. Figure 3.1 Adapted from R. Haller-Trost, The Contested Maritime and Territorial Boundaries of Malaysia: An International Law Perspective (London, The Hague, and Boston: Kluwer Law International, 1998), p.505.

501

502

NOTES ON FIGURES

Figure 5.1 This map has been redrawn from a map titled “The Republic of Indonesia: territorial sea claims” in A1838, 3034/7/8 Part 2 (NAA). Figure 5.2 This map has been redrawn from the map accompanying Law No.4. That map contains more place names (all written in by hand) and an insert showing the area between Singapore and the Riau Islands. Copies of the original map that the Indonesian government distributed in 1960 are in FO 371/152480 (UKNA) and AMBZ, inv. 2.05.118, no. 3438 (NA). Reproductions are in Sumitro Lono Sedewo Danuredjo, Hukum Internasional Laut Indonesia: Suatu Usaha untuk Mempertahankan Deklarasi 1957 (Djakarta: Bhratara, 1971), vol. 2, and J.J.G. Syatauw, Some Newly Established Asian States and the Development of International Law (The Hague: Martinus Nijhoff, 1961). Figure 6.1 Based on information in FO 371/175296 (UKNA). The routes from Singapore to the Sunda Strait via the Gaspar Strait and from the Lombok Strait to Singapore via the Karimata Strait are those shown on a map titled “Steamship routes: Indian Ocean” in Boyle T. Somerville, compiler, Ocean Passages of the World, 2nd edition (London: Hydrographic Department, Admiralty, 1950). Figure 6.2 Redrawn from two sections of “East Indies”, chart accompanying Ministry of Defence to Commander Far East Fleet, 30 December 1964, FO 371/176496 (UKNA). The dotted line across the northern entrance of the Makassar Strait cannot be seen on the very faded copy of the chart that we consulted but it can be inferred from the gap in Indonesia’s system of straight baselines at that point. Figure 7.1 Boundaries of the area covered by the interim arrangement taken from the map accompanying Hasjim Djalal, “Implementation of agreements with foreigners” (1978), in Francis T. Christy, Jr. (ed.), Law of the Sea: Problems of Conflict and Management of Fisheries in Southeast Asia, ICLARM Conference Proceedings, No. 2 (Manila: ICLARM, 1980). Figure 7.2 Redrawn from the map accompanying the Geographer, U.S. Department of State, “Continental shelf boundary: Indonesia-Malaysia”, Limits in the Seas, no. 1 (1970), and incorporating data from Victor Prescott and Clive Schofield, “Undelimited maritime boundaries of the Asian Rim in the Pacific Ocean”, Maritime Briefing

NOTES ON FIGURES

503

(International Boundaries Research Unit, University of Durham), vol. 3, no. 1 (2001), pp.41–42. Figure 7.3 Redrawn from the maps accompanying the Geographer, U.S. Department of State, “Continental shelf boundary: Indonesia-Malaysia”, Limits in the Seas, no. 1 (1970), and “Territorial Sea Boundary: Indonesia-Malaysia”, Limits in the Seas, no. 50 (1973). Figure 7.4 Redrawn from maps accompanying Geographer, U.S. Department of State, “Territorial Sea and Continental Shelf Boundaries: Australia and Papua New Guinea-Indonesia”, Limits in the Seas, no. 87 (1979), and “Straight Baselines: Indonesia”, Limits in the Seas, no. 35 (1971). Figure 7.5 This map has been redrawn from “Sketch map 2A” in A1838, 752/1/23 Part 6 and Part 9 (NAA). The numbers associated with the two endpoints of the segment of Indonesia’s straight baseline shown on this map are taken from the map accompanying Law No.4 of 1960. Figure 8.1 Adapted from R. Haller-Trost, The Contested Maritime and Territorial Boundaries of Malaysia: An International Law Perspective (London, The Hague, and Boston: Kluwer Law International, 1998), p.505. Figure 8.2 Based on Jonathan I. Charney and Lewis M. Alexander (eds), International Maritime Boundaries (Dordrecht, Boston, and London: Martinus Nijhoff, 1993), vol. 2, pp. 1207–14 and 1228–36 (map on p.1204, text by Victor Prescott), and the Geographer, U.S. Department of State, “Territorial sea and continental shelf boundaries: Australia and Papua New Guinea–Indonesia”, Limits in the Seas, no. 87 (1979), and “Straight baselines: Indonesia”, Limits in the Seas, no. 35 (1971). Figure 9.1 Adapted from Vivian L. Forbes, Indonesia’s Maritime Boundaries (Kuala Lumpur: Malaysian Institute of Maritime Affairs, 1995), p.25, and the Geographer, U.S. Department of State, “Territorial sea boundary: Indonesia-Singapore”, Limits in the Seas, no. 60 (1974). The median line is taken from the latter source. Figure 9.2 This map was prepared by Dr I Made Andi Arsana using Peta NKRI 2011 published by the National Coordinating Agency for Surveys and Mapping (Bakosurtanal) as

504

NOTES ON FIGURES

the base map. Small islands that could be used as basepoints were identified using relevant British Admiralty charts and Google Earth. The map uses the longest possible straight baselines permitted under the UK’s proposal. Figure 10.1 This map is based on a section of a map titled “Steamship routes: Pacific Ocean” in Boyle T. Somerville, compiler, Ocean Passages of the World, 2nd edition (London: Hydrographic Department, Admiralty, 1950). Figure 16.1 This map has been redrawn from a map in Mochtar Kusumaatmadja, Konsepsi Hukum Negara Nusantara pada Konperensi Hukum Laut ke-III: ceramah pada tanggal 12 Pebruari 1977 di Gedung Kebangkitan Nasional Jakarta (Jakarta: Idayu Press, 1977). This map follows the original in the way it shows the continental shelf boundary and Indonesia’s archipelagic baselines in the Malacca Strait. Compare with figure 7.3. Figure 17.1 Redrawn from Departemen Luar Negeri, Paparan tentang Wawasan Nusantara (Perjuangan Pengakuan dan Pengimplementasiannya) (Jakarta: Departemen Luar Negeri, May 1982), maps XIIA and XIIB. These maps do not include the coordinates of the axes or the Fishing Area. Figure 19.1 Vivian Louis Forbes and Mohd. Nizam Basiron, Malaysia’s Maritime Realm Atlas (Kuala Lumpur: Maritime Institute of Malaysia, 2008), p.147; Clive Schofield and I Made Andi Arsana, “Closing the loop: Indonesia’s revised archipelagic baseline system”, Australian Journal of Maritime & Ocean Affairs, 1 (2009), 60–61; International Maritime Organization, “Adoption, designation and substitution of archipelagic sea lanes”, SN/Circ.200 (26 May 1998); Indonesian Government Regulation no. 37 of 2002, article 12(3); David K. Wright, “Archipelagic sea lanes designation: considerations for operational level planners” (Newport, Rhode Island: Naval War College, 1998).

Notes on photographs photographs on Notes

Photograph 4.1 Indonesian Spectator, 1 April 1958. Photograph 7.1 “Indonesia—Australia/Indonesia—Continental Shelf boundary negotiations”, A1838, 752/1/23 Part 4 (NAA). We are grateful to Hasjim Djalal and Gerard Brennan for helping us to identify the delegates and to the National Archives of Australia for permission to reproduce this photograph. Photograph 16.1 Kusumaatmadja, Konsepsi Hukum Negara Nusantara pada Konperensi Hukum Laut ke-III (Jakarta: Idayu Press, 1977). Photograph 16.2 Kusumaatmadja, Konsepsi Hukum Negara Nusantara pada Konperensi Hukum Laut ke-III (Jakarta: Idayu Press, 1977). Photograph 17.1 Reproduced with the kind permission of Professor Hasjim Djalal.

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Index Index

Note: Indonesians often do not have family names. Nevertheless, for the sake of consistency we have listed all Indonesian names in reverse order, even when they are customarily called by their first name. For example, “Djuanda Kartawidjaja” becomes “Kartawidjaja, Djuanda”. “18 principles” (Bahamas), xv, 301–4, 306, 309–10 “19 rules” (regarding archipelagic sea lanes passage through Indonesia), 429–30 Adderley, Paul, 301, 417 Aguilar, Andrés, 224, 250, 289, 324–25, 338–39, 344–48, 360–62, 370, 375–78, 382, 387–89, 397–98, 408, 425, 466, 492, 494 Alatas, Ali, 428 Albania, 314, 326 Alexander, Lewis, 190, 466, 474, 495 Ambon [fig. 10.1], 26, 41, 67, 98, 99, 137, 138 Amerasinghe, H.S., 194, 209, 224, 247, 255, 268, 289, 291–92, 316, 324, 357, 362, 374, 377, 388, 396–97, 405–7 Anambas Islands [fig. 17.1], 27, 216, 219, 307 Andaman and Nicobar Islands, 179, 233, 248, 305 Andaman Sea, 321 Anderson, D.H., 276, 279

Anglo-Norwegian Fisheries case, 50–54, 56, 58, 65–66, 70, 72, 89, 94, 112, 168, 279 Arafura Sea [fig. 7.4], 56, 115, 150–52, 154–56, 158, 321, 361, 410 archipelagic baselines, xvi, xvii, xix, 239, 241, 243, 271–72, 285, 317, 331, 345–46, 348, 360, 372, 378, 383, 389, 430–32, 504 archipelago, concept and definition of, xvi–xvii, xxiv, 19–20, 30–32, 60, 87–88, 89–90, 92, 96, 153–54, 159, 167–70, 173, 176–80, 188, 190–91, 193, 198, 203–4, 208, 212–13, 214–15, 216, 217, 218–19, 226–46, 247–68, 271–88, 290–91, 294–98, 300–6, 313–16, 317–21, 323, 325, 328, 329–32, 343–44, 345–46, 360, 362, 363, 365–66, 374–78, 384, 387, 398, 405–6, 414–15, 417–18, 421, 425–26, 440, 466, 471, 475, 477, 485, 497 archipelagic sea lanes, xvi, 212, 240, 241, 290, 309–13, 318, 326, 337, 347–48, 384, 497; Indonesia’s [fig. 19.1], 259, 318, 320, 325, 337–38, 340–41, 342, 350–51, 372, 380, 395, 405, 431 archipelagic sea lanes passage, xvi, 290, 515

516

INDEX

309–13, 314, 325, 326, 335–37, 339–41, 347–48, 352, 354, 357, 359, 359, 360–61, 363, 371, 372–73, 374, 379–81, 384–86, 389, 395, 396, 398, 405, 411, 419, 429–30, 497 archipelagic state, definition of, xvi, xxi, 61, 154, 166, 167–70, 177, 179–80, 189–90, 200, 203–4, 212–13, 214–15, 216–21, 233, 234–36, 238–39, 241, 243, 248–49, 252, 257, 260–61, 263, 268, 271, 298, 301–2, 305–6, 323, 329–31, 345, 376, 386–87, 406; origins of concept of, xxii, 30–31, 61 archipelagic states group, membership of, 179, 326–27 archipelagic waters, origins of concept of, xvi–xvii, xxi, 170, 200, 213–14 Argentina, 261, 290, 315, 405 Arifin, Zahar, 364, 384, 409 Aru Islands [fig. 7.4], 5, 8–10, 118, 150, 151, 219 Ashmore Reef [fig. 8.2], 197, 407, 410 Asian-African Conference (Bandung 1955), 49 Asian-African Legal Consultative Committee (AALCC), xii, 104, 154, 166, 167, 176, 226, 227, 277 Association of Southeast Asian Nations (ASEAN), xii, 115, 135, 208, 237, 283, 334, 365, 391, 474 Australia, x, xi, xiii, xxiv, xxvi, 8–13, 18, 31, 45, 46, 52, 54, 55–56, 78–79, 100–3, 109–10, 115, 118–19, 121, 123, 125, 126, 127, 132–33, 142, 149–52, 154–56, 157, 158, 160–61, 166, 172–73, 178–79, 181, 184, 186, 190, 195–96, 197, 201, 206, 221, 226, 232, 248, 251, 291, 315, 321–22, 328–29, 334, 341, 343, 357, 361–62, 365, 373, 385, 387, 394–95, 400–1, 406–7, 409–10, 414, 415, 417, 428, 429–32, 433, 436, 457, 460, 462, 467, 489, 494 Austria, 374, 427 axis line, concept of, 350–51

“Back Shore” (Achterwal) (Aru Islands), 9, 10, 11 Bahamas, xv, 248, 261, 272, 278–80, 297, 301, 304, 306, 313, 326–27, 330, 332, 336, 417, 425 Bahrain, 290, 343 Bailey, Kenneth [photo 7.1], 158, 160, 172, 174 Balikpapan (east coast Borneo), 41 Banda Sea [fig. 5.2, fig. 7.1, fig. 19.1], 6, 55–56, 66, 70, 75, 76, 106, 115, 124, 129, 137, 196, 256, 307, 308, 402, 429 Banda Sea Agreement [fig. 7.1], 137, 138, 184, 270 Bangka [fig. 2.2], 26, 38 Bangladesh, 326, 341 Bawean [fig. 6.1], 26, 126, 430 Belgium, 402, 414 Belitung [fig. 2.2], 26, 38 Bernard, Ch.J., 27–28, 34 Blouin, F.J., 131 Bogaars, George, 474 Brazil, 332 Brennan, G.A., 322, 505 Brennan, Keith [photo 7.1], 158, 417 Brodjonegoro, Soemantri, 149 Broecke Hoekstra, A. ten, 28, 34 Brown, George, 296 Bulgaria, 58, 224, 262, 291, 332, 334, 361 Burke, Arleigh, 77 Burke, William, 95, 466 Burma, 93, 234, 360 Buru [fig. 7.1, fig. 10.1, fig. 19.1], 12, 230–31, 272, 310, 429, 473 Bynkershoek, Cornelius van, 3, 85 Caminos, Hugo, 466, 480 Canada, 31, 90, 94, 96, 107, 211, 248–49, 251, 253, 280, 315, 344, 402–3 Cape Verde, 331–32, 360, 376 Carl Vinson, USS, 430 Carpenter, John, 13

INDEX

Carter, Jimmy, 364, 392, 424 Casey, R.G., 102, 103 Celebes Sea, see Sulawesi Sea Ceylon, see Sri Lanka Challenger, HMS, 6, 139 China (including People’s Republic of), 2, 5, 81, 131, 135, 172, 230, 236, 251, 292, 326, 336, 342, 357, 358, 359, 396, 405, 423 Chicago Convention (Convention on International Civil Aviation), 339–40, 380, 485 Chile, 50, 253, 442–43 Clingan, Thomas, 329–30, 367, 418, 420, 485 Codification Conference (The Hague, 1930), 28–34, 35, 37, 44, 54, 61, 70, 94 Colombia, 343–44 Combs, Willis, 286–87 Committee for the Investigation of Independence, 46–47 Confrontation, 122–27, 131, 135, 206, 417 Conrad, Joseph, 1–2, 4 constitution, Indonesian, 47, 48, 64, 102, 133, 205, 432–33, 458 Constituent Assembly, 64–66, 68, 98, 102 continental shelf, xvii–xviii; Indonesia’s, 55–58, 65, 69–70, 75, 117, 142–43, 144, 146–59, 164, 176, 196–97, 199, 232–33, 356, 399–402, 407, 410, 432–34; international law of, 49–50, 57, 61–62, 85, 140–41, 143–44, 199, 224, 250–51, 267, 306, 315, 322, 328–29, 330, 344, 357, 375, 389–90, 401–02 Continental Shelf Convention (1958), xiv, 95, 97, 117, 139–40, 143, 150, 154–55, 402 Convention on the Rights and Duties of Neutral Powers in Naval War, 28, 44 Costa Rica Packet, 12–13, 437–38 Cuba, 70, 241, 262, 278, 330, 332, 376 Cyprus, 201, 251 Danusaputro, Munadjat, xxii, 67, 68, 71, 72,

517

98, 99, 136, 371, 374, 423, 445, 446, 449, 455, 456, 469, 490 Decision No.103 of 1963, 122–23, 124 Dean, Arthur H., 85–87, 90, 96–97, 104–5, 107, 109, 171, 427, 453 Delsman, H.C., 23 Diamantina, HMAS, 119, 123 Djuanda Declaration (of 13 December 1957), xx–xxi, xxiii, 71–76, 77–83, 85–94, 96, 97, 98–106, 110, 116–17, 193, 198, 199, 413, 417, 421–22, 426, 446 Djajadiningrat, Idrus Nasir, 195, 228, 230–31, 235–36, 245, 287, 467 Djalal, Hasjim [photo 17.1], xxii, 112, 116–17, 118, 123, 132, 142, 143, 152, 154, 164, 165, 166, 172, 173, 176, 178, 179, 182, 183–84, 185, 186, 187–88, 192–93, 195, 201, 204, 206, 208, 209, 211, 213, 216, 217–18, 222, 226–27, 228, 231, 238, 245, 253, 255–58, 260, 262, 270, 271–73, 277, 278, 283, 289, 297, 299, 319–20, 325–26, 334, 344, 347, 348, 351–52, 353, 359, 360, 361, 365, 366–67, 371, 372, 374, 381, 387, 390, 393, 394–96, 398, 399, 400–1, 403, 404, 405, 408, 409–10, 414, 416, 418, 419, 422–23, 426, 427, 428, 430, 433, 458, 460, 464, 466, 470, 471, 472, 478, 482, 485, 489, 500 Dobo (Aru Islands), 5, 6, 8, 10 Douwes Dekker, E.F.E., 42 DPR (People’s Representative Council), 173, 174 Draper, Jack A., 479 Drenthe , 66, 69, 91, 445, 449 Dudgeon, Harry, 218–19, 253, 290, 293, 297, 304 Earl, George Windsor, 42 East Timor, 46, 282, 328, 400, 410, 423, 424, 432, 433, 434, 500 Ecuador, 50, 58, 88, 261, 262, 268, 330, 332,

518

INDEX

343–44, 375, 376–77, 398, 401, 405–6, 415, 418, 425, 497 Elias, A.F., 15–16 El Salvador, 50, 201, 289, 375 Enterprise, USS, 175 Eiriksson, Gudmundur, 480 Engo, Paul, 224, 391, 466 equidistance line, concept of, see median line Ethiopia, 58, 290, 376, 480 Evensen, Jens, 89, 292, 391 Evensen Group, 292, 313, 319, 325 Evertsen, 69 exclusive economic zone (EEZ), xvii–xviii, 173, 224, 256, 257, 252, 314–15, 321, 330, 333, 344, 357, 366, 370, 375–76, 388–89, 403, 417; Indonesia’s [fig. 16.1], 322, 329, 361, 365, 368, 391, 394–96, 400, 401, 403, 406, 420, 427, 432, 433–34, 498 extended continental shelf, xviii, 329 Ferwerda, H., 41, 44 Fiji, xvi, xxiv, 167–70, 177–80, 185, 187–91, 195, 200, 201, 203, 209–14, 218–19, 227, 234–36, 238–39, 241–42, 245–46, 261, 272, 279–80, 290–91, 293–94, 295, 297, 298, 300, 304, 306, 308, 309, 311, 313, 314–16, 321, 325, 326–27, 329, 330–32, 336, 376, 417, 418, 425, 466, 469, 492 Finland, 427, 440 First Workshop on the Implementation of Wawasan Nusantara (1978), 396 Fisheries Ordinance (1927) [fig. 1.3], 18–25, 27, 32, 33, 39, 40 Fitzmaurice, Sir Gerald, 60, 62, 89–90, 94 Fonblanque, J.R., 462 Ford, Gerald, 318–19, 364, 484 France, 2, 3, 4, 6, 56, 78, 179, 201, 204, 248, 251, 261, 262, 278–79, 342, 387, 402–3, 409, 414, 415, 485 free transit (of straits), 141, 152, 171, 179, 184, 185, 191, 194, 204, 209, 211, 259, 262, 280

French, Stuart, 296 Galapagos Islands, 58, 415, 418 Galindo Pohl, Reynaldo, 289, 291, 292, 294, 297–98, 300–1, 304, 313, 325, 481 Gayan, Anil, 469 General Border Committee (Indonesia-Malaysia), 196 Germany, Federal Republic of (West Germany), 4, 15, 19, 31, 45, 80, 251, 280, 314, 336, 339, 387, 402, 414 Gilchrist, Andrew, 458 Glover, Victor, 179, 215, 217, 218 Gooszen, A.F., 23 Gorshkov, Sergei, 118 Greece, 191, 201, 251, 262, 280, 305, 313, 330, 332, 335, 336, 343, 344, 397–98, 414 Groningen, 66, 69 Grotius, Hugo, 1, 85, 417 Group of Five (G5), xii, 251, 262, 276, 278–79, 374, 485 Group of 11 (G11), 414–15 Group of 77 (G77), xii, 177, 185, 194, 224–25, 231–35, 246, 247, 250, 271, 282, 285, 287–88, 291, 316, 354, 366, 409, 414, 415, 421, 423, 425 Group of Coastal States, 251, 252, 401 Hamzah, B.A., 245, 355, 413, 497 Hamzah, Tengku Razaleigh, 181–82 Hancock, USS, 223 Harry, Ralph [photo 7.1], 156, 158, 178–79 Hatta, Mohammad, 42, 45, 46, 47, 63, 80 Hawea, HMNZS, 52 Heavner, Theodore, 187, 463, 466 Heijting, D., 8–9 Heutsz, J.B. van, 16–17 high seas, concept of, xviii, xx, 3, 5 High Seas Convention, 95, 117 Hodgson, Robert, 190, 228, 235, 236, 238, 239, 254, 466, 474 Hoëvell, G.W.W.C. Baron van, 9–11, 437

INDEX

Hollick, Ann, 296, 399, 442–43, 466 Iceland, 58, 89, 253, 290, 414, 428 India, 7, 57–58, 90, 123, 142, 175, 179, 186, 201, 211, 233–34, 246, 248–49, 251, 252, 253, 261–62, 280, 291, 305, 313, 315, 317, 329–30, 344, 360, 376–77, 418, 425, 427, 497 Indonesia, formation of, 8, 19–20, 45, 46–49; idea of, xxiii, 42–44, 80, 421–22, 424 Indonesian archipelago, concept of, 46, 70, 72, 73–74, 106, 205 Indonesian Communist Party, see Partai Komunis Indonesia Informal Composite Negotiating Text (ICNT), xv, 377, 382, 387–91, 393, 394–98, 400–1, 403, 404, 405, 426, 495 Informal Single Negotiating Text (ISNT), see Single Negotiating Text Ingersoll, Robert, 255, 258 Inglés, José, 178, 398 innocent passage, concept of, xviii, xxii, 2–3, 21, 452; Indonesian position on, 74, 77, 83, 91, 103, 106, 116–20, 154, 160–61, 168, 183, 184, 193, 196–97, 200, 201–3, 208, 209–10, 211, 219, 222, 249, 254, 258, 260, 264, 274, 283–84, 298, 299, 302, 359–60, 365, 379–80, 383–84, 430, 455 Inter-Agency Task Force on the Law of the Sea (US), 190–94, 228 interdepartmental committee (dealing with Indonesia’s maritime claims), 57–59, 63–69, 71–72, 80, 81, 99, 102–4, 117, 119, 446, 448 Inter-governmental Maritime Consultative Organization (IMCO), 162, 164, 174, 175, 273, 275, 280–81, 293, 353, 372, 393–95, 398, 404, 408, 429 internal waters, concept of, xviii, xxi, 21; of Netherlands Indies [fig. 2.1, fig. 2.2], 24, 36–40; Indonesia’s, 66, 74, 77, 79, 103, 106, 112–13, 120, 129, 168, 170, 184, 189,

519

207, 302, 307, 383–84 International Court of Justice (ICJ), 50–54, 56, 58, 66, 70, 72, 89, 94, 112, 125, 130, 155, 168, 279, 432, 433 International Law Commission (ILC), 54, 59–63, 67–68, 69, 71, 72, 78, 82–84, 87, 90–95, 103, 153, 450 International Maritime Organization (IMO), 429 “international straits”, 108, 141, 154, 158, 174, 178–79, 181, 182, 184, 192, 194, 203, 223, 262, 367 international waters, see high seas “interpretive statement” (regarding rights of coastal states in relation to transit passage), 369–70, 374, 378, 404, 408–9, 415, 425–26 Iran, 286, 290, 291, 326, 336, 359–60 Irian Barat, see West New Guinea Irian Jaya, see West New Guinea Israel, 57, 96, 161, 223, 415 Italy, 29, 90, 211, 290, 414, 448 Jackling, Roger, 203 Jakarta Treaty (Indonesia-Malaysia, 1982), 355, 393, 407, 409–14, 417, 422, 423, 429 Jamaica, 416, 418 Japan, xii, 18, 21–23, 26–27, 31, 34–35, 37, 39, 40–41, 45, 46, 47, 48, 55, 58, 79, 83, 109, 115, 123, 134, 136–38, 161, 162, 164, 172, 174–75, 180, 181, 184, 191, 201, 224, 232, 241, 248, 251, 261, 262, 266, 270, 276–78, 299, 300, 304, 308, 314, 328, 331, 334, 343, 347, 349, 353, 360, 361, 367, 375, 383, 387, 394, 404, 414, 415, 422, 439, 472, 485, 488, 494 Java Sea [fig. 1.2, fig. 5.2, fig. 6.1, fig. 19.1], 22, 26, 45, 55, 56–57, 66, 69, 71–72, 74, 103, 111, 113, 115, 117, 119, 125, 126, 219, 341, 429–30, 431 Johan Maurits van Nassau, 69 Jones, Howard P., 101, 104

520

INDEX

Kadarusman, 147 Kadir bin Yusuf, Abdul, 248, 265, 332–33, 352, 353, 369–70, 373–74, 378, 391 Kamil, Abdullah [photo 17.1], 245, 253, 277, 280, 287, 322, 374, 387, 416, 418, 419, 423 Karel Doorman, 115–16, 119 Karimunjawa Islands [fig. 1.2], 21, 22, 41 Kartawidjaja, Djuanda, xx–xxi, 55, 64, 71–73, 75, 76, 102, 116, 122, 131, 193, 413, 421–22, 446 Kartini, Raden Adjeng, 42 Kasimbar, 449 Kenya, 211, 250, 290, 375 Khrushchev, Nikita, 105 King, Robert J., 196 Kissinger, Henry, 190, 192, 328, 363, 488, 489 Koh, Tommy, 206, 292, 294, 304, 324, 346, 408, 415, 416, 418, 486 Koninklijke Paketvaart-Maatschappij (KPM), 6, 20, 48, 69, 76, 92, 449 Kopkamtib, 166 Kusumaatmadja, Mochtar [photo 4.1, photo 7.1, photo 16.1, photo 16.2, photo 17.1], xxii, xxvi, xxvii, 65–76, 80–84, 86–88, 91, 95–96, 98–99, 102–4, 106, 116, 117, 119, 122–23, 132, 141–43, 147, 149, 151, 152, 155–56, 158, 159, 160, 164, 165–66, 168, 170, 171–73, 174, 175, 176, 192–93, 195–96, 200, 226, 228, 230, 237, 239, 244–45, 248–51, 252, 253–55, 259–60, 264–65, 269–71, 275, 277–78, 280–82, 286–87, 289, 295, 296, 297, 317–23, 327–29, 350–52, 354–56, 361, 362, 363–64, 365–67, 369, 371, 373, 374, 383, 385, 387, 390–92, 394–96, 400, 403, 407, 410, 413, 415, 416–17, 418–20 Kusumowidagdo, Suwito, 101, 125, 127–28, 457 Kuwait, 361 L.4 (A/CONF.62/L.4), xv, 255, 476

L.15 (A/AC.138/SC.II/L.15), xiv, 200–3, 212, 213, 215–17, 221 L.18 (A/AC 138/SC.II/L.18), xiv, 201–4, 210–11, 233 L.42 (A/AC.138/SC.II/L.42), xiv, 210–11, 470 L.44 (A/AC.138/SC.II/L.44) [fig. 9.2], xiv, 214–15, 218–19, 220, 221 L.48 (A/AC.138/SC.II/L.48), xiv, 215–18, 221, 470 L.49 (A/CONF.62/C.2/L.49), xv, 257, 283, 284–85, 298–300, 302–3, 305, 306, 309, 310, 311, 338 L.64 (A/CONF.62/C.2/L.64), xv, 307, 481, 486 Laird, Melvin, 194 Lakshadweep Islands, 233, 248 landlocked and geographically disadvantaged states (LLGDS), 232, 249–51, 287, 292, 316, 324, 330 Latvia, 29 Laurens, E.H., see Wiryosaputro-Laurens, E.H. Lauterpacht, Elihu, 492 Law No.1 of 1973, 199 Law No.4 of 1960 [fig. 5.2], xxvii, 105, 106–7, 109, 112–14, 116–17, 119–22, 130, 133, 136–38, 142, 143, 145–47, 149–50, 152, 156, 167, 170, 176, 184, 193, 196, 198, 199, 205, 208, 219, 230, 232–33, 245, 267, 274, 311, 347, 360, 383, 390, 393, 398–99, 402, 421–22, 429, 430, 432, 500 Law No.5 of 1983, 498 Law No.6 of 1996, 429–30 Law of the Sea Institute, 190, 192, 395, 403, 422, 460 Lebanon, 290, 480 Lee Kuan Yew, 206–8, 237, 370 legal committee (of Maritime Council), 117–18, 122–23, 455 Leifer, Michael, 67, 162, 182, 445, 459, 465, 483

INDEX

Ligitan [fig. 19.1], 146, 431, 432, 433 Liszt, Franz von, 15 Logan, James, 42 Lombok Strait [fig. 6.1], 100, 110, 121, 126, 127–28, 187, 351, 428, 429 Loudon, John, 19–20, 23 Libya, 336, 341 Lubis, Alimudin, 410 MacArthur Line, 55 Madagascar, 405, 455 “Main trends” (Caracas session working paper), xv, 267–68 Majapahit, 43, 46 Makassar Strait [fig. 5.2, fig. 6.1, fig. 6.2(b)], 41, 92, 100, 113, 124, 126, 129, 219, 276, 429, 502 Malacca Strait [fig. 6.1, fig. 7.3], xxiii, xxiv, 43, 46, 47, 63, 67, 76, 84, 124, 126, 130, 132, 142, 143, 145, 147, 148, 156, 161–64, 166, 172, 174–77, 180–82, 183–84, 186–87, 192, 196–97, 198, 201–2, 208, 222, 223, 232, 243, 276, 281, 290, 325, 353, 358–59, 364–65, 369, 370, 373, 383, 390, 393, 394, 404, 413, 434, 458 “Malay Archipelago” (Malaysian proposal), 221–22, 320, 471 Malik, Adam, 180–81, 182, 186, 198, 207, 208, 223, 228, 255, 258, 265, 269, 272, 276, 281, 363–64, 371, 396, 489 Maluku Sea [fig. 5.2], 112, 129, 429 McDougal, Myres, 65, 95 McIntyre, L.R., 101, 149 McLoughlin, Donald, 167–70, 178–79, 200, 234, 315, 464, 466, 475 Malaya, 46, 48, 63, 67, 76, 79, 96, 110, 112, 122, 123 Malaysia, xxiv, 122, 123, 124, 131, 135, 142, 143, 145–49, 152, 156, 161–64, 166, 171–72, 173, 174–76, 180–82, 183, 186–87, 196–98, 201, 204, 206, 207, 208, 221–22, 232, 236–37, 243, 245, 248, 249,

521

251, 256–58, 262, 265–66, 268, 270, 272, 281, 283, 290, 298, 307–8, 313, 317, 319–20, 321, 325, 326, 332–33, 334, 345, 346, 350, 352–54, 355–56, 358–60, 361, 362, 364, 367, 368, 369–74, 378–79, 382–83, 388, 391, 392, 393, 394, 404, 407, 408–9, 410–14, 415–16, 417, 422, 425, 430, 432–34, 459, 464, 471, 472, 475, 482, 486, 489, 496 Manila meeting (of Philippines, Indonesia, and Fiji, 1972), 187–90, 197, 198, 200 Marcos, Ferdinand, 177 maritime boundary agreements Indonesia-Australia (continental shelf, Arafura Sea) [fig. 7.4, fig. 7.5, photo 7.1], 150–52, 154–56, 157, 158, 321, 361, 410 Indonesia-Australia (continental shelf, Timor Sea) [fig. 8.2], 149–50, 151, 152, 154–55, 166, 195, 196, 197, 321–22, 328, 361, 365, 400–1, 407, 410, 467 Indonesia-Australia (provisional fisheries enforcement line), 410 Indonesia-Malaysia (continental shelf) [fig. 7.2, fig. 7.3], 143, 145–48, 176, 432, 434 Indonesia-Malaysia (territorial sea) [fig. 7.3], 143, 147–48, 149, 152, 166, 206 Indonesia-Malaysia-Thailand (continental shelf), 142, 175–76, 206, 321 Indonesia-Philippines (EEZ), 433 Indonesia-Singapore (territorial sea) [fig. 9.1], 162, 206–8 Indonesia-Thailand (continental shelf), 142, 175–76, 206, 321 maritime boundary delimitation, principles of, 143–45 Maritime Council (Dewan Maritim), 116, 133; see also legal committee Maritime Districts Ordinance (1918) [fig. 1.2], 20–23, 26, 35, 38, 41 Martadinata, R.E., 102–3, 115, 116, 123, 133 Martens, Frederic de, 13–14

522

INDEX

Mauritania, 336 Mauritius, 177, 179, 191, 203, 212, 215, 219, 238, 253, 326, 331–32, 485 median line, xvii, xviii, 142, 144–45, 149–51, 155, 175, 195–96, 207, 232–33, 321, 361, 390, 399, 406–7, 410, 467 Melbourne, HMAS, 109, 119 Menado (northeast Sulawesi), 26, 27 Mendelevitch, L.I., 182–83 Mendoza, Estelito, 179 Mexico, 50, 93, 251, 253, 389 Meyer, Paul, 96 Miangas [fig. 3.1, fig. 8.1], 53, 169, 267, 398–99, 433 Miles, Edward, 291, 292, 356, 366, 408, 415, 428, 446 Moore, John Norton, 203–4, 228, 230, 235, 236, 238, 239–42, 245, 251, 253–54, 264–65, 271–76, 278–79, 281, 295, 296–97, 312, 323, 337, 350, 474, 475, 477, 478 Moorer, Thomas, 186 Morocco, 201, 251, 286, 290, 291, 336, 341, 397–98, 472 Morris, Max, 228, 239, 254, 271, 296, 327, 351, 352–54, 364, 367, 384, 478 MPR (People’s Consultative Assembly), 174, 205, 396, 432–33, 458 muro ami (Japanese drive-in net), 21, 26–27, 439 Murtopo, Ali, 183 Nandan, Satya, 177–79, 200–1, 203, 209–12, 214, 218–19, 224, 234–36, 238–39, 241, 245, 260–61, 263, 272, 279, 286, 290–96, 298, 300, 304–16, 317, 325, 326–27, 330–31, 335, 337–38, 343, 345, 347–49, 392, 405, 417, 418, 424, 428, 464, 466, 468, 469, 470, 475, 480, 482, 488, 491 Nasution, Abdul Haris, 64 Natuna Islands [fig. 7.2, fig. 17.1], 110, 146, 216–17, 233, 307, 399, 412, 470

Netherlands, xxii, xxiv, 1, 4–5, 7, 8, 10, 11, 13–14, 15, 18–19, 28–29, 31–33, 34, 40, 42, 43, 44, 45, 47–48, 56, 64, 66, 68–69, 71–72, 74–75, 76, 78, 79, 91–92, 98, 103, 115, 117–18, 121, 262, 267, 280, 402, 421, 439, 449, 451 Netherlands Indies, formation of, xxiii, 4–8, 15, 19–20, 25 Netherlands Indies archipelago, 19–20, 23, 25, 36, 40, 441 New Guinea (island of), 4, 8, 19, 43, 44, 66, 69, 114, 115, 252 Newsom, David D., 228, 230, 235–36, 241, 242–44, 245, 255, 258–60, 264–65, 269–70, 277, 280–82, 285–88, 296, 318–23, 327, 328, 350, 351, 354, 356, 362, 363–64, 369, 371, 373, 421, 475, 480, 487, 488, 489 New Zealand, 52, 54, 58, 78, 101, 109, 118–19, 178, 186, 201, 241, 253, 280, 315, 330, 331, 414, 427, 457 Nigeria, 201, 290, 332, 335 Nixon, Richard M., 152, 155, 161, 180, 186, 194, 227, 364 Nordquist, Myron, 228, 238, 466, 478, 498 normal baselines, concept of, xviii, 72, 432 North Sea Continental Shelf cases, 144, 155 Norway, 29–32, 50–52, 54, 56, 58, 65, 66, 70, 72, 80, 89, 94, 112, 168, 251, 253, 279, 280, 292, 361, 391, 427, 439, 440 Nugroho (minister counsellor, Indonesian embassy in US, 1957), 62–63 Nyotowiyono, Umaryadi, 156, 159, 474 Ocean Passages of the World, 110 O’Kelly, Raymond, 10–11 Oliver, P.R., 125, 127–28, 457 Oman, 251, 326, 336 Organization of African Unity (OAU), 208, 209 Otago, HMNZS, 119 Oxman, Bernard, 218, 226–27, 228, 230,

INDEX

254, 271, 272, 276, 277–78, 327, 350, 351, 352–54, 367, 466, 478 Pakistan, 78, 79, 175, 186, 261, 262, 360, 376, 405, 457 Panggabean, Maraden, 271, 276, 281, 350–51 Pankorwilnas, 164–65, 174, 228, 244, 319, 364, 371, 396, 409, 423, 463, 473 Papua New Guinea, 222, 327, 329, 492 Pardi, Mas, 81, 114, 454 Pardo, Arvid, 140–41, 215–18, 470 Park, Choon-Ho, 146, 466 Partai Komunis Indonesia (PKI), 42, 63–66, 76, 98, 100, 101, 115, 123, 127, 131–33, 135, 184, 230 Peacock, Andrew, 322, 328–29, 361, 400 Pearling and Trading Company, 9–11 pearling ordinances, 8–17, 18, 20, 39 Pérez de Cuéllar, Javier, 418 Peru, 50, 201, 261, 262, 405 Pertamina, 155, 245 Philippines [fig. 3.1, fig. 8.1], xvi, 4, 12, 46, 52–54, 58, 62, 67, 70, 78–79, 83, 88, 92, 94, 96, 107, 108, 122, 123, 134, 135, 136, 142, 154, 159, 166, 168–69, 170, 176, 177–78, 179, 185, 187–89, 190–91, 195, 200–1, 203, 208, 209–12, 216–19, 221, 227, 233, 234–39, 241–42, 245–46, 248, 251, 253, 258, 262, 264, 265, 266–68, 279, 280, 294, 297, 298, 300, 302, 304, 306, 308, 309, 313, 315–16, 318, 319, 320–21, 323, 326, 327, 329, 332, 333, 334, 335–36, 338–39, 340–43, 356, 358, 364, 375, 376, 378, 387, 397, 398–99, 405–6, 414, 417, 423, 424–25, 433, 445, 450, 453, 462, 471, 472, 474, 475, 497 Pinke, F., 18 Pirngadi, 57, 66, 72 Podserob, Boris, 182 Poland, 334, 343 Portugal, 1, 29, 46, 85, 91, 261, 328, 330, 332, 448, 454

523

Prescott, Victor, 175, 196, 321, 464 Pulunggono, A. [photo 7.1], 155, 158 Rajaratnam, S., 181, 207–8, 237, 281, 346 Ratu Langie, G.S.S.J., 27–28, 34, 43 Razak, Tun Abdul, 182, 236, 237, 245, 319, 475 Reagan, Ronald, 407, 414, 420 Regulation No.4 of 1960, see Law No.4 of 1960 Regulation No.8 of 1962, 117, 119, 121, 122, 130, 133, 136, 160, 178, 193, 302, 350, 422, 496 Regulation No.37 of 2002, 430 Regulation No.38 of 2002, 430 Revised Single Negotiating Text (RSNT), xv, 344–49, 352–53, 355, 357–61, 365, 367, 369, 371, 373–74, 375–86, 388–89, 391, 398, 488 Revolutionary Government of the Republic of Indonesia (PRRI), 80, 116 Rhode Island, University of, conference (1972), 192, 422 Riau (and Riau-Lingga Archipelago) (south of Singapore), 15, 27, 41, 125, 184 Richardson, Elliot L., 364, 366, 367, 370, 371, 373, 378, 383, 391, 401–2, 407, 424, 490 Rithauddeen, Tengku Ahmad, 281 Roëll, J.A., 10, 16 Rotuma (Fiji), 170, 212, 315, 474 Rusk, Dean, 127 sailing permits (Presidential Decision No.16 of 1971), 160–61, 165, 166, 172 Saleh, Chairul, 65–67, 69, 71, 72–73, 75, 80, 98, 102, 132, 133, 445 Sandström, A.E.F., 60 Sani, Anwar, 244, 277, 280, 287, 296, 374, 387, 423 Santiago declaration, 50, 54 Santos, Abad, 405

524

INDEX

Sastroamijoyo, Ali, 57, 63, 64, 67, 99 Saudi Arabia, 92, 93, 96, 360 Schücking, Walther, 440 Seabed Committee, establishment of, 138–41, 153–54 sea territory (zeegebied, of the Netherlands Indies) [fig. 1.3], 1, 23–25, 26–27, 32–33, 35–36, 38–41, 438 Seda, Frans, 174 Serrano, Felixberto M., 78–79 Shafie, Ghazali, 413, 417, 471, 496 Showa Maru, 276–77, 280–81, 328 Singapore, 1, 5, 27, 41, 42, 69, 110, 111, 112, 121, 122, 124, 127–28, 130, 135, 161, 163, 166, 173, 174–75, 181, 187, 206–8, 211, 222, 232, 237, 243, 245, 248, 251, 262, 270, 276, 281, 283, 290, 292, 298, 308, 320, 321, 334–35, 341, 346–47, 349, 351, 353, 355–56, 364–65, 367, 370, 371, 373, 378, 393, 404, 408, 415, 417, 425, 430, 433, 449, 467, 474, 478, 479, 486, 487, 490 Singapore Strait [fig. 9.1], 130, 161–64, 166, 174–75, 181, 183, 206, 207, 208, 276, 281, 328, 365, 393, 404, 433 Single Negotiating Text (SNT), xv, 291–92, 294, 297, 300, 305, 309, 310, 312–16, 317, 322, 324–27, 329, 330, 332, 334–36, 338, 341–43, 344, 345, 347, 348, 377, 389, 480, 485, 486 Singo Mangkuto, Djamaluddin gelar Datuk, 65 Sipadan [fig. 19.1], 146, 431, 432–33 skjaergaard (Norway), 30, 50, 60, 168 Somalia, 326 Sörensen, Max, 89–90 South China Sea [fig. 7.2], xxiv, 56, 110, 112, 142, 145–46, 156. 196, 233, 246, 308, 334, 399, 413, 429, 433 Southeast Asia Treaty Organization (SEATO), 56–57, 64, 66, 76, 77, 78, 101, 109 Spain, 1, 2, 3, 4, 5, 19, 52, 85, 201, 211,

217–18, 223, 251, 261, 286, 290, 291, 330, 343–44, 352–53, 360, 361, 382, 387, 388, 397, 398, 409, 414–15, 418, 436, 443, 448, 470, 471, 472, 491 Sri Lanka, 10, 94–95, 194, 211, 396 Srivijaya, 43, 46 “statement” (regarding rights of coastal states in relation to transit passage), see interpretive statement Stevenson, John, 170–72, 174–75, 183, 187, 190, 245, 254, 295–96, 323, 463, 475, 477 straight baselines, xvi, xvii, xix, xxiv, 29–31, 38, 50–52, 53–54, 58–60, 82, 87–88, 89–91, 94, 97, 103, 106, 144, 168–70, 176, 180, 188–89, 200–1, 212–14, 217, 218–20, 221–22, 236, 242, 252, 254, 257, 262–63, 274, 279, 283, 301–2, 306–7, 331–34, 343, 345, 360, 440, 443, 444; Indonesia’s [fig. 5.2], xx, 58, 66, 70–71, 72, 74, 77, 80, 86, 87–88, 89, 92–93, 94, 96, 99, 110–14, 117, 120, 124, 128–29, 145–51, 154, 155–56, 170, 175, 177, 179, 207, 230, 232–33, 245–46, 248, 254, 267, 360, 412, 420, 430–32, 451, 454 straits used for international navigation, xxi, 61, 62, 92, 139, 162, 171, 173, 182, 185, 201–3, 208, 209, 211, 219, 223, 224, 227, 229, 239, 243, 248, 249, 250, 253, 268, 275, 285, 290–94, 314, 323, 325, 358–59, 365, 367, 369–70, 375, 377, 382, 386, 388, 380, 404, 406, 409 Subandrio, 69, 81, 101–5, 109, 115, 118–19, 122, 125, 128, 133, 149, 451, 457, 458 Subardjo Djoyoadisuryo, Ahmad [photo 4.1, photo 16.1], 81, 82, 84, 85, 86–87, 88, 90, 94–95, 96–97, 102, 103, 104, 107, 110, 116, 117, 133, 139, 366 Subiyakto, R., 56–57, 98, 99, 102 submarines, xviii, 61, 67, 84, 86, 91, 105, 107–8, 119–20, 121, 128, 140, 163, 178, 183–84, 186, 192, 193, 202–4, 210, 218, 226–27, 229, 230, 239, 249, 254, 258, 259,

INDEX

272, 274, 284, 289, 294, 298, 299, 309, 312, 314, 325, 337, 340, 361, 380, 390, 398, 464, 466 Subono, R., 174, 176, 186, 228, 244 Sudarmono, 228, 231, 237–38, 239, 241, 242–44, 245, 255, 260, 264–65, 269, 271–79, 281–82, 285–86, 287–88, 295, 296–97, 319, 323, 327–28, 337, 351–52, 354, 364, 374, 413, 423–24, 473, 477, 478 Sudarso, Yos, 118 Sudharmono, 258 Sudomo, 176, 186, 466 Suharto, 132–33, 135, 142, 147, 160, 165, 166, 172, 177, 183, 206, 207, 227, 230, 236–37, 245, 258–60, 296, 317, 318, 319–20, 321, 328, 350–51, 374, 387, 390, 396, 423–24, 425, 472, 475, 487, 496 Sukarno, 42, 45, 46–47, 63, 64, 68, 71, 74, 75, 79, 80, 98, 102, 104, 105, 115, 118, 122, 123, 124, 131, 132–33, 136 Sulawesi Sea (also Celebes Sea) [fig. 5.1, fig. 5.2, fig. 6.2, fig. 9.2], 12, 55, 111, 112, 113, 129, 145, 146–47, 220, 351, 429, 432, 433–34 Sullivan, William, 472 Sulu, 5, 19, 443 Sumardiman, Adi [photo 7.1], 158, 374, 416, 423, 432, 454 Sumengkar, Rachmat, 457 Sumitro, 166, 206, 223, 230, 473 Sunario, 80, 443, 453 Sunda Strait [fig. 1.2, fig. 6.1], 20, 22, 47, 100, 101, 110, 121, 122, 124–28, 133, 244, 427, 429, 458 Suwondo, Purbo S., 462, 463 Sweden, 30–31, 60, 80, 89, 90, 414, 440 Syahrir, Sutan, 44 Tanaka, Kakuei, 270, 472 Tanjung Datu [fig. 7.2, fig. 17.1], 145, 146, 147 Tarakan (east coast Borneo), 41

525

territorial clause, 402, 414, 422, 427 territorial sea, concept of, xiv, xvi–xix, xxi, 3, 13, 15–16, 31, 50–51, 54, 57–58, 59–63, 83–84; discussions at conferences regarding, 28–34, 54, 83–95, 96, 97, 103, 106–9, 249–50; Indonesia’s 12–mile, 67–68, 69, 70–71, 72, 73–75, 81, 83, 96, 99, 106, 107, 110–13, 117, 120, 124, 125, 128–29, 130, 156, 196, 198, 334; Netherlands Indies’ 3-mile, 23, 33, 34, 35–40, 44–45 Territorial Sea Convention (1958), xvii–xviii, 96, 97, 103, 125, 163, 182, 201, 210, 401, 470 Territorial Sea and Maritime Districts Ordinance 1935 [fig. 2.1, fig. 2.2], 34–42, 44, 48, 440 Territorial Sea and Maritime Districts Ordinance 1939, 41–42, 44, 48, 67, 73, 106 territorial waters, xix, 3, 6–8, 10–11, 13–17, 18–19, 21, 23, 26, 27–34, 35, 37, 38, 43, 47–48, 50–51, 52, 54, 55, 56–57, 58, 73, 77, 84, 85–86, 92, 99, 103, 104, 106, 107, 116–17, 123, 131, 168, 170, 179, 182, 223, 266, 340, 439, 445,451 Thailand (Siam), 2, 18, 78, 135, 142, 175–76, 206, 208, 222, 232, 233, 234, 237, 245, 265, 266, 268, 283, 298, 305, 308, 313, 321, 330, 334, 343, 346, 349, 355, 356, 376, 377, 414, 415, 418, 464 Thousand Islands (Kepulauan Seribu) [fig. 1.2], 22, 23, 37, 101 Timor Sea [fig. 8.2], 149–51, 152, 154–55, 166, 195–97, 322, 328, 361, 365, 400, 401, 407, 410, 467 Timor Trough [fig. 8.2], 151, 155, 195, 197 Tonga, 315, 332 Trihardjo, 165–66, 231, 238, 245, 253, 271, 289, 423, 462 Tolentino, Arturo, 107, 159, 200, 202, 216–18, 417, 470, 471, 497

526

INDEX

Torrey Canyon, 161 Toussaint, Donald, 271 transit passage, xix, 253, 254, 290, 293, 298, 300, 303, 311, 314, 325–26, 339, 345, 348, 352, 358–59, 365, 370, 372, 373, 381, 382–83, 385, 386–87, 388–89, 390–91, 394, 397, 404, 409, 414, 416, 418, 419, 425 Treaty of Paris (United States–Spain), 52, 58, 107, 443 Truman proclamations, xvii, 49–50, 57 Turkey, 262, 305, 330, 343, 376, 377, 415, 425 Ukraine, 88 under-keel clearance (UKC), 353, 359, 364, 369, 383, 393–94, 404, 408, 487, 488, 497 Union of Soviet Socialist Republics, 77, 81, 84, 90, 91, 93, 94, 103, 105, 107–8, 115, 118, 119, 135, 139, 141, 160, 161, 163, 175, 179, 180–83, 186–87, 197–98, 203–4, 221, 223, 238–39, 242, 244, 251, 248, 259, 262, 278, 281, 282, 289, 291, 297, 304, 314, 315, 318, 323, 330, 331, 332, 333, 337, 338, 339, 343, 344, 357–58, 361, 363, 366–67, 374, 376, 378, 387, 390, 401, 404, 415, 425, 450, 465, 485, 488 United Arab Emirates, 290 United Kingdom, xxiv, xxvi, 2, 3, 4–5, 6, 10, 11, 13, 16, 28, 32, 41, 45, 46, 47, 50, 51, 54, 60, 62, 69, 78, 80, 89, 90, 91–92, 99, 101, 105, 109–10, 112, 117, 118, 119, 122, 124–29, 130, 131, 132–33, 139, 146, 161, 162, 176–77, 181, 182, 183, 186, 187, 190, 196–97, 198, 203, 204, 214–15, 218–20, 221, 230, 235, 238, 241, 242, 244, 248, 253, 254–55, 251, 261, 262, 268, 276, 278–79, 281, 282, 286–87, 288, 290, 293–94, 295, 297, 298, 302, 304, 306, 309, 314, 315, 325, 331, 333, 342, 343, 361, 375, 378, 382, 387, 388, 402, 414, 415, 404, 436, 443, 447, 448, 456, 457, 458, 463, 476, 485, 495

United Nations Convention on the Law of the Sea (1982) (LOSC), xviii, xxi, xxii–xxiii, 224, 415–20, 422, 425, 427–30, 432, 433, 470, 471, 497, 500 United States, xxii, xxiii, xxiv, 3, 6, 22, 31, 35, 45, 48, 49–50, 51–52, 56, 57, 64, 67, 69, 75, 77, 78–79, 80, 81, 83–84, 85–86, 88, 90, 91, 93, 96, 98, 100–1, 104–5, 107–9, 110–12, 115, 116, 117, 118, 121, 125, 127, 131, 132, 135, 139, 141, 142, 152, 153, 160, 161, 163, 170–71, 172, 175, 181, 182, 183, 186–87, 190–92, 193–94, 198, 203–4, 209, 211, 213, 217, 218, 223, 226–31, 233, 234–36, 237, 238–44, 245–46, 248, 251, 252, 253–54, 255, 258–60, 262, 264–65, 269–88, 290, 291, 292, 294–97, 301, 303, 304, 306, 310, 311, 312, 314–15, 316, 318–19, 320, 323, 325, 326, 327–28, 329–30, 332, 333, 334, 335, 336–39, 341, 343, 344, 346, 349, 351, 352–53, 354, 356, 357–58, 359, 361, 362, 363–64, 366–67, 369–71, 372–74, 378, 381, 382, 383–86, 387, 388, 389, 390, 391, 392, 394, 398, 401–2, 404, 408–9, 414–15, 418–19, 420, 422, 423, 424–25, 427, 428, 429, 430, 443, 448, 450, 453, 456, 458, 469, 471, 472, 473, 474, 475, 485, 486, 487, 489, 490, 499 Uruguay, 360 Vance, Cyrus, 371–72 Venchard, Edwin, 469 Venezuela, 58, 224, 290, 415, 416, Victorious, HMS [fig. 6.1], 123–28, 131 Vietnam, 83, 125, 127, 142, 160, 175, 232–33, 245, 318, 356, 399, 423, 433 Vohrah, L.C., 171–72, 204, 256–57, 263, 265, 283, 352 W43 (draft archipelagic state articles), xv, 298–302, 307, 309, 311, 312, 335, 343, 481

INDEX

Waldheim, Kurt, 247 Wallace, Alfred Russel, 5, 8 Wawasan Nusantara, 136, 165, 205–6, 351, 390, 396, 416, 427, 468, 483 Weh, Pulau [fig. 2.2], 21, 175 West Irian, see West New Guinea West New Guinea, 44, 48, 64, 66, 68, 69, 98, 103, 110, 112, 114, 115, 118, 119, 121, 424, 500 Wignjosapoetro, Tjipto, 296 Wilhelmina, Queen, 41 Wiryosaputro-Laurens, E.H., 160, 271, 402, 423, 467 Wisnumurti, Nugroho, 145, 157, 231, 245,

527

253, 265–66, 289, 374, 387, 402, 410, 416, 423, 444 Woolcott, Richard, 494 Yamin, Muhammad, 46–47, 57, 442 Yankov, Alexander, 224 Yatim, Zakaria Mohamed, 410, 415 Yemen, 201, 251, 262, 290, 326, 336, 341 Yorty, Sam, 51 Yudono, Subroto, 364, 374 Yugoslavia, 88, 89, 132, 173 Yusuf, Suffri, 277–78, 286, 320, 327, 466 Zourek, Jaroslav, 60–61, 70