Australia and Indonesia at odds at sea

Australia and Indonesia both have a keen interest in the law of the sea as both possess large maritime areas of jurisdiction. But this commonality does not mean their interests necessarily coincide. Australia has a keen interest in freedoms of navigation through the archipelagos to its north, but Indonesia, as the largest of these archipelagos, is most sensitive to the movement of foreign ships and aircraft in and around its archipelagic waters.

For Indonesians, the sea is an integral part of the nation-state. The concepts of nusantara and tanah air, which see the islands of the Indonesian archipelago as linked together despite their physical separation, are fundamental principles of nation-building for Indonesia.

Indonesia championed the concept of the archipelagic state during negotiations on the 1982 UN Convention on the Law of the Sea (UNCLOS). This regime is highly beneficial for countries that are largely comprised of islands. These archipelagic states may draw straight baselines connecting the outermost points of their archipelago. Waters within these baselines are considered archipelagic waters under full sovereignty of the archipelagic state. This sovereignty is subject to the right of archipelagic sea lanes (ASL) passage along ASLs designated by the archipelagic state, or if no ASLs are designated, along routes normally used for international navigation or overflight. There is also a right of innocent passage outside of ASLs.

Indonesia’s designation of ASLs was a controversial issue between Australia and Indonesia, with Australia wanting more ASLs than Indonesia was prepared to designate. Currently Indonesia only designates North–South transits; there is no East–West sea lane through the Java and Flores seas. Because this is a route normally used for international navigation, Australia and the United States continue to exercise a right of ASL passage through these seas, although this appears contrary to Indonesian regulations.

Australia’s and Indonesia’s conflicting interests on law of the sea issues has led to numerous incidents over the years. Australia was severely embarrassed in early 2014 when it was revealed that several Royal Australian Navy and Australian Customs vessels had entered Indonesian territorial waters in connection with the Abbott government’s strategy to stop people smuggling, Operation Sovereign Borders, in December 2013 and January 2014. Australia apologised for these incidents, while as a result Indonesia demanded a halt to government’s policy of turning back boats carrying asylum seekers.

These incidents arose from a poor appreciation of Indonesia’s straight baselines. While the territorial sea normally extends 12 nautical miles from land, if straight baselines are used, it can extend much further — a ship can be well beyond 12 nautical miles from land and still be within Indonesia’s territorial sea. In another incident in October 2014, Indonesian Sukhoi fighter jets intercepted an Australian civilian plane and forced it to land in Manado for flying through Indonesian airspace without proper authority.

The recent contretemps with Indonesia over alleged payments to people smugglers by Australian officials also has a law of the sea dimension that has not been recognised, with commentaries on the incident so far focusing on whether or not a crime has been committed. Some commentators have likened the payments to those paid by Australian officials onshore in Indonesia to counter people smuggling.

But there’s one big difference in this case and that is that the alleged payments were made on the high seas, or at least in the exclusive economic zone of Indonesia, where certain rights and freedoms of the high seas are available. The law of the sea refers to a ‘right of visit’ for vessels in these waters. But this is only justified in very limited circumstances, such as if the vessel is suspected of being involved in piracy.

While the precise location where Australian patrol boats intercepted the alleged people-smuggling vessel has not been revealed, clearly it was outside the territorial seas of both Indonesia and Australia. Thus the Australian patrol boats had no right to ‘visit’ this vessel without permission of its flag state — presumably Indonesia.

There have been suggestions that Australian officers were concerned that the people-smuggling vessel was unseaworthy. But this concern does not justify boarding another vessel on the high seas. There had been no call for assistance and it is for the master of the vessel to determine whether or not his craft is unseaworthy.

Indonesia is very important to Australia but, as John Garnaut recently pointed out, Australia has succeeded in rocking Indonesia’s boat at significant cost to its own interests. One interest that Australia cannot ignore is the economic and strategic importance of free movement through the Indonesian archipelago.

Australia and Indonesia should work together, as two countries with among the largest maritime jurisdictions in the world, on their common interests both in managing the Timor and Arafura seas and more generally in promoting good order at sea throughout the region. Australia could support Indonesia in its efforts to manage tensions in the South China Sea, rather than contemplate freedom of navigation operations in conjunction with the US that may well confirm Indonesia’s view that Australia is overly assertive on law of the sea issues.

Sam Bateman is an adviser to the Maritime Security Programme at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University.