Thursday, November 23, 2017



Chris Forward*



In May 1996, Indonesia submitted the first (and only) proposal for the designation of three Archipelagic Sea Lanes (ASLs) within its archipelago to the International Maritime Organisation (IMO). The IMO has claimed the mandate of being the ‘competent international organisation’ referred to in the United Nations Convention on the Law of the Sea (LOSC)1 for designating ASLs.2 After significant protests from major maritime countries including Australia and the United States (a prominent non-signatory to the LOSC),3 the IMO declared Indonesia’s submission a ‘partial designation’ of ASLs.4 This has provided maritime countries a significant victory as the declaration has rendered the Indonesian ASLs practically useless because because there is no compulsion for maritime countries to use them. Maritime countries, through their influence over the IMO, have maintained almost complete and unfettered access for shipping within the archipelagic waters of Indonesia. This paper examines the Indonesian submission to determine the validity of the IMO’s declaration at international law. Specifically, it examines the authority of the IMO as a self professed ‘competent international organisation’, the role it has undertaken in the process, and the legality of its determination that Indonesia’s ASL submission was a ‘partial declaration’.

This paper makes three assertions. First, despite claims to the contrary,5 the LOSC is not a universal codification of the law of the sea nor is it a ‘Constitution for the Oceans’.6 It is a fundamental treaty which numerous states are bound to adhere through being signatories. However, numerous important non-signatories, the significant quantity of declarations on the interpretation of its provisions and the failure of the treaty to declare its jurisdiction over non-signatories mean the treaty is not a full embodiment of universally applicable customary law. The LOSC has universal application where it can be shown that it codifies existing customary law. However, the treaty has introduced significant new concepts such as the archipelagic state, archipelagic sea-lane passage (ASLP) and ASLs. To be universally applicable (that is applicable to all states, including non-signatories), it must be demonstrated that the international legal concepts pioneered by LOSC have been accepted as representing customary international law.7 This paper argues that as there has been no complete implementation of the process for designating ASLs through the process designated by the LOSC, the process cannot be accepted as valid international customary law. Therefore the process is only binding on countries who are party to the treaty. Secondly, in the absence of being specifically named in the LOSC treaty, the IMO must show it has been recognised as having the mandate as the ‘competent maritime authority’ to designate ASLs.8 It is argued that the IMO does not have this mandate yet, despite its declaration to the contrary. Finally, the paper analyses the conduct of the IMO in its consideration of Indonesia’s submission for recognition of ASLs within its territory and specifically the legality of its declaration of the submission as being a ‘partial submission’.


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