ASEAN, UNCLOS, AND THE BIRTH OF A NEW LEGAL ORDER
Damos D. Agusman and Gulardi Nurbintoro[1]
On 14 October 2017, Universitas
Padjadjaran will present its annual Mochtar Kusumaatmadja Award to Ambassador
Tommy Koh of Singapore, the President of the Third United Nations Conference on
the Law of the Sea from 1980 to 1982. This award is a recognition for his
valuable contribution toward the development of international law and his
significant role in the adoption of the United Nations Convention on the Law of
the Sea (UNCLOS) in which the archipelagic State concept was finally
recognized.
The recognition of the archipelagic
State concept was the culmination of Indonesia’s 25 years of diplomacy since
the Djuanda Declaration in December 1957. The Djuanda Declaration itself was
the result of a study conducted by Pak
Mochtar Kusumaatmadja.
The study assessed the security
threat for Indonesia should it continued to follow the rule under the 1939
Territorial Waters Ordinance inherited from the Dutch Colonial Regime. The
Ordinance determined that each island of the Indonesian archipelago has its own
3 nautical miles of territorial waters. This situation led to the existence of
international waters between Indonesian islands. Certainly, this situation was
not favorable to Indonesia, a nation that believes in the concept of Tanah Air, that the land and water is a
single united entity that cannot be separated from one another.
The philosophy of Tanah Air, coupled with the existence of
security threat, forced Indonesia to come up with a new concept that would
establish, in the words of Ambassador Tommy Koh, a new legal order. Pak
Mochtar Kusumaatmadja then proposed a concept that would allow Indonesia to
draw baselines connecting the outermost points of the outermost islands. He
drew the analogy from the 1951 Judgment of the International Court of Justice
on the Anglo – Norwegian Fisheries Case.
The Court had decided that Norway’s drawing of straight baselines along their
fringing islands and sjaergaard was
not in contradiction to international law.
Conscious of the similar situation
Indonesia faced, Mochtar Kusumaatmadja argued that the geographical
characteristics, as well as socio-cultural and economic realities, would allow
Indonesia to draw archipelagic straight baselines that would enclose the waters
between Indonesian islands and subjected them under Indonesia’s sovereignty. In
1982, the archipelagic State concept was finally adopted by the Conference and
embodied as Part IV of UNCLOS.
The UNCLOS is a very important document
to the world, including Indonesia. Ambassador Tommy Koh emphasized this
importance as he described the Convention as the “Constitution for the Oceans”.
It was important as it was not merely a codification of the existing customs,
but also contains many new and innovative concepts of international law. Ambassador
Koh wrote that “these new concepts of international law were created in
response to the advance of technology, to the demand, especially by the
developing countries, for greater international equity, and by the new uses of
the sea and its resources”. This development was marked by Ambassador Koh as
the Death of the Old Legal Order.
Reflecting his analysis into
Indonesia’s experience, it would therefore not be of an exaggeration to subscribe
to the idea that the Djuanda Declaration had also contributed to the weakening
of the old legal order and was part of the establishment of the New Legal Order.
As we now find ourselves in the
second decade of the 21st Century, we may now question ourselves
whether the current legal order is in par with the development of current world
situation? Has the UNCLOS been appropriately applied so that the philosophy of common heritage of mankind is not
neglected?
The truth is, shortfalls exist in
UNCLOS. As a package deal convention, it is to be expected that certain provisions
were intentionally made ambiguous to allow a wide corridor of interpretations.
The South China Sea Arbitration was
an exhibit how the diverse interpretation of UNCLOS provision could lead to
disagreements among States.
Back
in 1970s, we did not know that living organisms could survive, let alone live,
in the oceans floor in the zone that would be designated as the Area. Based on this limited knowledge,
the drafters concentrated on regulating the non-living
organisms in the Area as part of common
heritage of mankind. Now, with the advancement of new technology, we know
for sure that living organisms can also inhabit the Area. New debate arose
whether the living organisms would fall under the Freedom of the High Seas of Part VII or the Common Heritage of Mankind of Part XI UNCLOS? Negotiations are
currently underway in the United Nations, and we will see how this matter will
evolve. The task is now for us to come out with the best solution that should
be in line with the spirit of UNCLOS.
Also,
another aspect that is crucial to the development of international law is the
Third Party Dispute Settlement Mechanism. Over the past years, we have seen a
rise in the number of disputes adjudicated at various forums, such as the
International Court of Justice, arbitration, or the International Tribunal for
the Law of the Sea.
ASEAN Member States have their share of
experiences in this regard. The Temple of
Preah Vihear Case between Cambodia and Thailand, the Sipadan and Ligitan Case between Indonesia and Malaysia, and the Pedra Branca Case between Singapore and
Malaysia are the cases adjudicated before the International Court of Justice.
Meanwhile the Bay of Bengal Case between
Bangladesh and Myanmar, and the Land
Reclamation Case between Malaysia and Singapore were deliberated before the
International Tribunal for the Law of the Sea.
While
going to a Third-Party Dispute Settlement Mechanism might not be desirable, it
is certainly less damaging than to engage in a prolonged armed conflict. The
fact that ASEAN Member States have opted to resolve their disputes peacefully
at the International Court of Justice or other forum indicate the maturity of
ASEAN and the eagerness to uphold the rule of law and evidenced the consciousness
of their obligations under the ASEAN Charter, the United Nations Charter, and
UNCLOS. Moreover, the participation of ASEAN countries in Third Party Dispute
Settlement mechanisms had essentially contributed to the development of
international law.
Pak
Mochtar and Ambassador Koh had given their everything to the development of
international law and the law of the sea. Now it is no longer the time to
burden them with the responsibility to conceive the path of the future of
international law. It is incumbent upon the younger generation to start
contemplating what they can contribute so that the rule of law in the oceans
will remain be adhered and respected. Young ASEAN
scholars must take part in chartering the future of international law.
[1]
Damos D. Agusman is the Director
General for Legal Affairs and International Treaties of the Indonesian Ministry
of Foreign Affairs. Gulardi Nurbintoro is a doctoral candidate in juridical
science at the University of Virginia, United States.
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