Early this month, the United States Department of Defense (DoD) released its report to the Congress on the Annual Freedom of Navigation for the fiscal year of 2021. Even though the US Freedom of Navigation (FON) program in Asia mainly focuses on China and the South China Sea, some Southeast Asian countries have been targeted as well, including Indonesia and in particular due to its archipelagic waters.
The issue of navigational rights and freedoms in Indonesia mainly relates to the regime of archipelagic waters. Indonesia and the US seem to have different interpretations of the implementation of archipelagic state regimes. However, it should be emphasized that the US does not question or challenge Indonesia’s status as an archipelagic state or its sovereignty over its archipelagic waters.
The US’ concerns are meant to ensure to what extend foreign vessels are allowed to exercise the navigational rights to which they are entitled under the United Nations Convention on the Law of the Sea (UNCLOS). This is the first Freedom of Navigation report under President Joe Biden, but it is not the first time the US has included Indonesia in its list under its FON program. During former president Donald Trump’s administration alone, the US released two Freedom of Navigation reports; in 2017 and 2018.
In both reports, Indonesia was listed as one of the countries that laid excessive maritime claims and, therefore, had to be challenged. Indeed, Indonesia and the US have a long history of different interpretations regarding archipelagic state regimes. One year after Indonesia enacted a government regulation on archipelagic sea lanes (ASL) in August 2003, the US officially sent a diplomatic note protesting the regulation. The protest note stated that the Indonesian submission to the International Maritime Organization (IMO) was only a “partial designation” so that “the right of the ships and aircraft of all states to exercise archipelagic sea lanes passage continues on all normal routes used for international navigation through other parts of the Indonesian archipelago, as provided in article 53(12) of UNCLOS”.
In July 2003, the USS Carl Vinson and five F-18s conducted a maneuver near Bawean Island in the Java Sea outside of the designated ASLs. The US F-18 Hornet fighter jets went into attack mode and locked their missiles onto two Indonesian Air Force (TNI-AU) F-16 fighters. The Indonesian authorities observed that the US planes were guarding an aircraft carrier, two frigates and a tanker. After noticing the US violation of Indonesian sovereign territory, the two TNI-AU F-16 fighter jets intercepted the US planes. After a long communication between the two forces, the incident was resolved and the US jets left Indonesian territory. The Bawean Island incident left a public debate not about why the US Navy came to Indonesian waters but more about how Indonesia dealt with and responded to it.
The incident was not the last instance where the US Navy challenged what they call as Indonesia’s excessive maritime claim. Based on the US Department of Defense Annual report, navy vessels and aircraft crossed Indonesian archipelagic waters on 73 occasions in 1997, 20 in 1998 and 22 in 1999. Moreover, in 2005-2010, the US Navy issued several diplomatic notes relating to Indonesia’s archipelagic waters, including protests against Indonesia’s claim that its partial designation of ASL was a “full designation”.
Based on the number of assertions by the US Navy, it is obvious that Washington aims to safeguard navigational rights in response to the Indonesian Government Regulation No 37/2003 on ASLs. The US believes that under Article 53 of UNCLOS, if a state has not yet designated ASLs, foreign ships can use the route normally used for international navigation under the regime of ASLs passage. It means that all ships, including warships, can use all routes normally used for international navigation in the archipelagic water in “normal mode” and aircraft can fly above the route. However, as Indonesia argues that there is ambiguity on the issue of routes normally used for international navigation, this also means that there is a lack of clarity as to what a foreign ship can and cannot do under the regime.
Against that backdrop, to ensure its legal certainty, Indonesia argues that it would be better for foreign ships wanting to pass Indonesian archipelagic waters other than the designated ASLs to adopt the innocent passage regime. Despite the legal and political debate regarding the interpretation of the route used for international navigation, there are more important practical problems when it comes to daily law enforcement. It is obvious that the most important goal of the US’ question is to assure its navigation rights and freedoms, including in Indonesian archipelagic waters. On the other side, Indonesia wants to maintain its national security by having legal certainty for all navigational passage in Indonesian maritime territory. That being said, it would be better for Indonesia and US to settle this issue regarding their interpretation of UNCLOS at the negotiation table to avoid a further escalation of this dispute between the two countries.
*** The writer is a lecturer in international law at the University of Indonesia and a young leader at the Honolulu-based Pacific Forum Foreign Policy Research Institute.