a list of geographical coordinates of points of the Indonesian Archipelagic Baselines based on the Government Regulation of the Republic of Indonesia Number 38 of 2002 as amended by the Government Regulation of the Republic of Indonesia Number 37 of 2008.
The Republic of Indonesia is an archipelagic State located in Southeast Asia between the Indian Ocean and the Pacific Ocean, south of the Philippines and north of Australia. Indonesia is composed of a reported 17,508 islands (approximately 6,000 inhabited), some of which are used for drawing Indonesia’s archipelagic baselines.
The archipelagic baseline system of Indonesia is composed of 192 baseline segments, of which 160 are straight archipelagic baselines and 32 are normal baseline segments.
The straight archipelagic baselines range in length from 0.51 nm (segment 97-98) to 122.75 nm (segment 44-45), with a total length of 6,920 nm.
The archipelagic baseline system of Indonesia meets the water-to-land area ratio set forth in Article 47.1:
Total Area = 4,986,325 square kilometers
Water Area = 3,081,756 square kilometers
Land Area = 1,904,569 square kilometers
Water-to-land area ratio = 1.61:1
Consistent with Article 47.2 of the LOS Convention, five baseline segments (20-21, 44-45, 54-55, 142-143 and 155-156), which comprise 2.6 percent of the total number of segments, exceed 100 nm in length; none of the segments exceed 125 nm. Annex 1 to this study (Regulation No. 37 of 2008) lists the lengths of each segment. The results of a separate analysis of the baseline segments conducted for the purposes of this study confirms what is listed in Regulation No. 37 of 2008.
The configuration of the baselines does not appear to depart to any appreciable extent from the general configuration of the archipelago (Article 47.3). None of the baselines appear to be drawn using low-tide elevations (Article 47.4). With one exception, the baselines are not drawn in a way that would cut off from the high seas or EEZ the territorial sea of another State (Article 47.5). In 2012 Timor-Leste objected to two of Indonesia’s archipelagic baseline segments on the basis of their cut-off effect.
These two segments—TD112A-TD113 and TD113B-TD114—can be seen on Map 2. In conclusion, Indonesia’s archipelagic baseline system set forth in Regulation No. 37 of 2008 appears to be generally consistent with Article 47 of the LOS Convention. However, it appears as though Indonesia needs to address with Timor-Leste the effect that its archipelagic baselines have on Timor-Leste’s maritime claims.
Territorial Sea, Exclusive Economic Zone and Continental Shelf By Article 3(3) of Act No. 6 of 1996, the archipelagic waters of Indonesia are those waters enclosed by the archipelagic baselines. Indonesia’s 12-nm territorial sea, established in Article 3(2) of Act No. 6, is measured from the baselines. Article 2 of Act No. 5 of 1983 established a 200-nm EEZ measured from the baselines. Indonesia’s legislation and regulations do not address the contiguous zone.
With respect to the continental shelf of Indonesia, Article 4(2) of Act No. 5 of 1983 states that “as far as it concerns the sea-bed and the subsoil thereof, the sovereign rights and other rights, jurisdiction and duties of Indonesia [pertaining to the EEZ], shall be exercised in accordance with the legislative provisions on the Indonesian continental shelf, agreements concluded between the Republic of Indonesia and neighbouring States and the rules of international law in force.” Indonesia’s continental shelf is also the subject of legislation enacted in 1973.
On June 16, 2008, Indonesia made a partial submission to the Commission on the Limits of the Continental Shelf (CLCS) concerning the area beyond 200 nm North West of Sumatra.
The CLCS made its recommendations with respect to this submission in March 2011.
In addition to the area northwest of Sumatra, there are two other areas where Indonesia may have continental shelf beyond 200 nm: to the north of Papua and to the south of Sumba.
Indonesia has indicated that it intends to make additional submissions to the CLCS at a later date.
Articles 11 to 17 of Act No. 6 of 1996 recognize the right of innocent passage (referred to in the Act as “crossing” rights) in Indonesia’s archipelagic waters and territorial sea. Article 18 of the Act recognizes the right of archipelagic sea lanes passage through waters of the Indonesian archipelago. Article 19 provides that Indonesia may designate sea lanes or air routes through or over archipelagic waters and territorial seas and may also prescribe traffic separation schemes.
An archipelagic State may designate such sea lanes, as well as traffic separation schemes, provided that “an archipelagic State shall refer [such] proposals to the competent international organization with a view to their adoption” (LOS Convention, Article 53, paragraphs 1 and 9). As the competent international organization, the International Maritime Organization (IMO) 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, prescribe, or substitute them” (Article 53.9).
Indonesia has proposed and the IMO has adopted three archipelagic sea lanes, which the government of Indonesia designated in its Regulation No. 37 of 2002. These archipelagic sea lanes run in the north-south direction; no east-west routes have been submitted to the IMO for adoption. In addition to designating three archipelagic sea lanes, Regulation No. 37 of 2002 prescribes in detail the rights and obligations of foreign ships and aircraft exercising the right of archipelagic sea lanes passage.
For the most part, the Regulation conforms to the provisions of Articles 52-54 of the LOS Convention (Annex 5 to this study). However, Article 3 of Regulation No. 37 appears to limit impermissibly the exercise of archipelagic sea lanes passage to designated sea lanes:
1. The exercise of the right of archipelagic sea lane passage as described in article 2 [of the Regulation] is conducted through a sea lane or air route above the sea lane designated as an archipelagic sea lane for the purpose of transit in such sea lanes, as stipulated in article 11 [of the Regulation].
2. Pursuant to this regulation, to exercise the right of archipelagic sea lane passage in other parts of Indonesian waters can be conducted after such a sea lane has been designated in those waters for the purpose of this transit.
Considering that Indonesia has designated only three north-south routes, such a restriction is not permitted by Article 53 of the LOS Convention. Article 53.4 states that “[archipelagic] sea lanes and air routes . . . shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters . . . provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.” In adopting three north-south routes, the IMO stipulated, and Indonesia confirmed at the time of adoption by the IMO, that this was a partial designation and that the provisions of Article 53.12 of the LOS Convention continued to apply pending adoption of designations for all normal passage routes.
Therefore, the right of archipelagic sea lanes passage may be exercised within the three designated routes, and also within other routes normally used for international navigation.
The Indonesian government has, on occasion, attempted to restrict the exercise of the right of archipelagic sea lanes by U.S. military aircraft through east-west routes normally used for international navigation. Such attempts are inconsistent with the navigational rights reflected in the LOS Convention.
Exclusive Economic Zone Jurisdiction
Article 4(3) of Act No. 5 of 1983 provides that in the Indonesian EEZ “the freedom of international navigation and overflight, as well as the freedom of laying submarine cables and pipelines, shall be respected in accordance with the principles of the international law of the sea.” The provisions of international law to which the Act refers are reflected in the LOS Convention, Parts V (pertaining to the EEZ); VI (pertaining to the continental shelf, including Article 79 pertaining to submarine cables and pipelines); and VII (pertaining to the high seas).
Existing agreements, traditional fishing rights and existing submarine cables
Article 51 of the LOS Convention (Annex 5 to this study), requires an archipelagic State to “respect existing agreements with other States” and “recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. . . .” These traditional fishing rights and other legitimate activities are to be “regulated by bilateral agreements.” Such an agreement between Indonesia and Malaysia, concluded in 1982, addresses a wide range of issues to account for the fact that “part of the archipelagic waters of the Republic of Indonesia lies between East and West Malaysia.”
Article 51 also provides that the archipelagic State shall respect existing submarine cables, including for their maintenance and replacement, laid by other States and passing through its waters without making landfall. This requirement is reflected in Article 22(2) of Indonesia’s Act No. 6 of 1996. Article 2(2) of the 1982 Treaty between Indonesia and Malaysia, referred to above, also provides that Indonesia shall continue to respect existing rights and other legitimate interests of Malaysia, including those “relating to the existence, protection, inspection, maintenance, repair and replacement of submarine cables and pipelines which are already in position and the laying of other submarine cables and pipelines in the territorial sea and archipelagic waters of the Republic of Indonesia lying between East and West Malaysia and the seabed and subsoil thereof.”