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Australia and Indonesia at odds at sea

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An Indonesian crew member of an alleged people-smuggling boat shows a table of USD notes allegedly given to the crew of the boat by an Australian official to bring illegal migrants back to Indonesia, 16 June 2015. (Photo: AAP)

In Brief

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.


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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.

2 responses to “Australia and Indonesia at odds at sea”

  1. Mr Bateman’s reference to an Australian plane being forced to land in Manado is misleading to the extent that it highlights Australia alone. This incident, which occurred within a day or two of Jokowi’s inauguration, was but the first of several interceptions by the Indonesian air force of foreign planes entering Indonesian air space without permission.

    I recall that only one incident involved an Australian aircraft. The planes forced down in this way, perhaps half a dozen in all, were all released after the payment of fairly small fines.

    These incidents marked the Jokowi administration first steps towards enforcing greater foreign respect for sovereignty. The Indonesian air force was clearly showing that it was on side.

    The concept of foreign respect for Indonesian sovereignty was later expanded to cover acceptance of Indonesia’s right to execute drug-traffickers without too much protest.

  2. Stave Bateman raises an important issue and gives it a degree of historical context making the link with Indonesia’s unheralded diplomatic success under Suharto in having the archipelagic accepted principle accepted in the United Nations Convention of the Law of the Sea. (Despite the efforts of at least five US presidents and, I gather, the US Department of Defense, since 1982 this law has yet to be ratified by the United States States weakening US moral authority/soft power persuasiveness when it is now required).

    As Steve Bateman suggests this concept is linked to that of tanah – air and the nusantara principle, however these are themselves linked to Indonesia’s foundational myths of the maritime kingdoms of Srivajaya and Mataram.

    Questions of maritime sovereignty are thus more sensitive in Indonesia than perhaps elsewhere because encroachments are perceived as invasive of the homeland rather than being encroachments in the seas adjacent to that homeland.

    The basis for what I have described elsewhere as a Sukarnoist turn in Indonesian foreign relations* go far back. However defining the five maritime pillars doctrine is an innovation of the Jokowi administration, albeit one inspired by policy planners previously close to Marty Natalegawa.

    As for another neighboring archipelagic state, the Philippines, and due to Chinese ‘assertiveness’ the defense of maritime borders has become a foreign policy priority with the concomitant need to upgrade somewhat appalling naval resources. The catch is this is contributing to a minor arms race in the region.

    Another parallel with the Philippines can be seen in the second major task given to Indonesian FM Retno Marsudi, namely the defense and support of Indonesian overseas workers, particularly in the Middle East. As with questions pertaining to the maritime homeland the human rights of fellow citizens overseas are emotional issues on which populist governments can find ready public support. Tony Abbott learned this lesson some time ago.


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