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45. State Department telegram to the U.S. Embassy in Jakarta concerning archipelagic claims (August 8, 2003)


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P R 081721Z AUG 03
FM SECSTATE WASHDC
TO AMEMBASSY JAKARTA PRIORITY
INFO AMEMBASSY CANBERRA
AMEMBASSY LONDON
SECDEF WASHDC 0000
JOINT STAFF WASHDC//J5/LC// 0000
CDRUSPACOM HONOLULU HI//J06//
COMPACFLT PEARL HARBOR HI
COMSEVENTHFLT
NAVAL WAR COLLEGE NEWPORT RI//14/36/CJ//

UNCLAS STATE 231166

E.O. 12958: N/A
TAGS: KTIA, PHSA, PBTS, MOPS, IN
SUBJECT: INDONESIAN ARCHIPELAGIC SEA LANES - SEEKING
CLARIFICATION

REF: A. 88 JAKARTA 10314
B. 90 STATE 402478

1. THIS IS AN ACTION CABLE. PLEASE SEE PARAGRAPH 14.

BACKGROUND
----------

2. PRIOR TO THE THIRD UN CONFERENCE ON THE LAW OF THE SEA
(1973-1982), INTERNATIONAL LAW DID NOT PERMIT ARCHIPELAGIC
CLAIMS; NOR WAS A 12-NAUTICAL MILE TERRITORIAL SEA ACCEPTED
AS AN INTERNATIONAL NORM. AS POST MAY BE AWARE, THE UNITED
STATES WORKED CLOSELY WITH THE INDONESIAN DELEGATION TO THE
THIRD UN CONFERENCE TO REACH AGREEMENT ON A REGIME FOR MID-
OCEANIC ISLAND STATES THAT WOULD ENABLE INDONESIA AND OTHER
SIMILARLY GEOGRAPHICALLY SITUATED ISLAND STATES TO ACHIEVE
INTERNATIONAL RECOGNITION OF THEIR SPECIAL STATUS AS
ARCHIPELAGIC STATES. THE DEVELOPMENT OF THE ARTICLES IN THE
1982 LAW OF THE SEA CONVENTION (LOS CONVENTION) PERTAINING TO
ARCHIPELAGOES, WHICH IS DESCRIBED IN MORE DETAIL IN THE
FOLLOWING PARAGRAPHS, WAS CAREFULLY NEGOTIATED TAKING INTO
ACCOUNT NAVIGATION RIGHTS OF THE INTERNATIONAL COMMUNITY.
SINCE 1982 ANY DISCUSSION THE UNITED STATES HAS HAD WITH
INDONESIA, EITHER BILATERALLY OR AT INTERNATIONAL MEETINGS,
HAS BEEN FOUNDED ON THE CLEAR RECOGNITION OF THESE NAVIGATION
RIGHTS.

3. UNDER THE REGIME AGREED TO IN PART IV OF THE 1982 LAW OF
THE SEA CONVENTION (LOS CONVENTION), AN ARCHIPELAGIC STATE IS
ENTITLED TO DRAW ARCHIPELAGIC STRAIGHT BASELINES AROUND THE
OUTERMOST POINTS OF THE OUTERMOST ISLANDS AND DRYING REEFS OF
THE ARCHIPELAGO AND THEREBY CONVERT HIGH SEAS AREAS WITHIN
THE ARCHIPELAGO INTO ARCHIPELAGIC WATERS UNDER THE
SOVEREIGNTY OF
THE ARCHIPELAGIC STATE. IN RETURN, THE ARCHIPELAGIC STATE
RECOGNIZED THE RIGHT OF SHIPS AND AIRCRAFT OF ALL STATES TO
TRANSIT THE ARCHIPELAGIC WATERS AND ADJACENT TERRITORIAL SEA
IN THE NORMAL MODE FOR THE CONTINUOUS, EXPEDITIOUS AND
UNOBSTRUCTED TRANSIT (I.E., THE RIGHT OF ARCHIPELAGIC SEA
LANES PASSAGE (ASLP)) THROUGH ALL ROUTES NORMALLY USED FOR
INTERNATIONAL NAVIGATION THROUGH THOSE WATERS UNTIL SUCH TIME
AS THE ARCHIPELAGIC STATE, IN CONJUNCTION WITH THE
INTERNATIONAL MARITIME ORGANIZATION (IMO), DESIGNATED
ARCHIPELAGIC SEA LANES (ASL) THROUGH THE ARCHIPELAGO ADOPTED
BY THE IMO. NOTE: THE TEXT OF THE CONVENTION MAY BE ACCESSED
AT WWW.UN.ORG/DEPTS/LOS. END NOTE.

4. IN 1986 AND REAFFIRMED IN 1988 AND 1990, THE UNITED STATES
RECOGNIZED THE RIGHT OF INDONESIA TO CLAIM THE STATUS OF AN
ARCHIPELAGIC STATE. THAT RECOGNITION WAS CONDITIONED ON
INDONESIA'S COMMITMENT THAT ITS CLAIM WAS THEN AND WOULD BE
IN THE FUTURE APPLIED TOWARD OTHER STATES AND THEIR NATIONALS
IN FULL CONFORMITY WITH INTERNATIONAL LAW REFLECTED IN PART
IV
OF THE LOS CONVENTION. INDONESIA AND THE UNITED STATES
MEMORIALIZED THEIR AGREEMENT ON THESE TERMS IN AN EXCHANGE OF
DIPLOMATIC NOTES IN CONNECTION WITH THE SIGNATURE OF THE US-
INDONESIA TAX TREATY ON 11 JULY 1988 (REFTEL A) AND RAFFIRMED
IN THE PROTOCOL OF EXCHANGE OF INSTRUMENTS OF RATIFICATION ON
30 NOVEMBER 1990 (REFTEL B). THE TAX TREATY, TIAS 11593,
ENTERED INTO FORCE 30 DECEMBER 1990.

5. FROM 1995-1998, INDONESIA CONSULTED CLOSELY WITH THE
UNITED
STATES AND AUSTRALIA IN IDENTIFYING THREE NORTH-SOUTH
MUTUALLY ACCEPTABLE ASL THROUGH THE INDONESIAN ARCHIPELAGO.
BETWEEN
1997 AND 1998, THE UNITED STATES AND AUSTRALIA THEN WORKED
WITH INDONESIA AT THE IMO TO CREATE THE REGULATIONS BY WHICH
THE IMO WOULD AGREE WITH SUBMISSIONS BY ARCHIPELAGIC STATES
OF
ASL AND THEN IN ADOPTING THE THREE INDONESIAN SEA LANES.

6. BECAUSE INDONESIA WAS NOT THEN IN A POSITION TO SEEK
APPROVAL OF ONE OR MORE EAST-WEST ASL, THE AXES ADOPTED BY
THE
IMO IS EXPLICITLY A PARTIAL SYSTEM. THE CONSEQUENCE OF A
PARTIAL SYSTEM IS THAT THE RIGHT OF ASLP CONTINUES THROUGH
ALL
ROUTES NORMALLY USED FOR INTERNATIONAL NAVIGATION THROUGH THE
INDONESIAN ARCHIPELAGO UNTIL THE DESIGNATION IS COMPLETE.

REGULATION NO. 37 OF 2002
-------------------------

7. ON 28 JUNE 2002, INDONESIAN REGULATION NO. 37 ON THE
RIGHTS
AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFT EXERCISING THE
RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH DESIGNATED
ARCHIPELAGIC SEA LANES WAS PROMULGATED, BY WHICH INDONESIA
FORMALLY DESIGNATED THE THREE NORTH-SOUTH ARCHIPELAGIC SEA
LANES ADOPTED BY THE IMO FOUR YEARS EARLIER. THE REGULATION
ALSO SETS FORTH RULES FOR FOREIGN SHIPS AND AIRCRAFT TO
EXERCISE THE RIGHT OF ASLP IN INDONESIAN SEA LANES, AND
CLAIMED THAT THE DESIGNATION WOULD BE EFFECTIVE ON
DECEMBER 28, 2002, SIX MONTHS AFTER THE REGULATION WAS
PROMULGATED. REGULATION NO. 37 WAS PROMULGATED ONLY IN THE
INDONESIAN LANGUAGE.

8. UNFORTUNATELY, THE GOVERNMENT OF INDONESIA DID NOT
PROVIDE
AN OFFICIAL ENGLISH TRANSLATION OF REGULATION NO. 37 TO THE
IMO, AS REQUIRED BY IMO GENERAL PROVISIONS ON SHIPS'
ROUTEING,
PART H, SECTION 3.13, UNTIL 27 JUNE 2003. THAT TRANSLATION
WAS NOT PUBLISHED BY THE IMO UNTIL JULY 3, 2003, AND NOT
POSTED ON THE IMO WEB SITE FOR SEVERAL WEEKS THEREAFTER.
NOTE: THE REGULATION MAY BE ACCESSED AT
200-ADD.1.PDF>. END NOTE.

9. AT THE TIME THE ASL WERE ADOPTED BY THE IMO IN 1998, EAST
TIMOR REMAINED UNDER THE CONTROL OF INDONESIA. EAST TIMOR
ULTIMATELY ACHIEVED INDEPENDENCE ON 20 MAY 2002.
CONSEQUENTLY, ARTICLE 14 OF REGULATION NO. 37 ACKNOWLEDGES
THAT THE ASL SPURS THAT PASS ON EITHER SIDE OF EAST TIMOR
(I.E., LETI STRAIT TO THE EAST (IIIB), AND PART OF OMBAI
STRAIT TO THE WEST (IIIA)) NO LONGER ARE PART OF INDONESIAN
ARCHIPELAGIC WATERS. RATHER THEY NOW ARE INTERNATIONAL
STRAITS BETWEEN INDEPENDENT COUNTRIES WHERE THE LEGAL REGIME
OF TRANSIT PASSAGE GOVERNED BY PART III OF THE LAW OF THE SEA
CONVENTION NOW APPLIES. FURTHER, THE ARCHIPELAGIC STRAIGHT
BASELINES DRAWN FROM POINTS ON EAST TIMOR TERRITORY ARE NO
LONGER VIABLE.

10. WASHINGTON AUTHORITIES HAVE NOW CAREFULLY REVIEWED THE
ENGLISH TRANSLATION OF INDONESIAN REGULATION NO. 37 AND HAVE
CONCLUDED THAT FOR THE MOST PART THE REGULATION AND ITS
ANNEXES FAITHFULLY FOLLOW THE PROVISIONS OF PART IV OF THE
LOS CONVENTION AND THE AXES OF THE ASL ADOPTED BY THE IMO,
INCLUDING THE TWO SPURS THAT ARE ADJACENT TO EAST TIMOR.
HOWEVER, THE TEXT OF THE REGULATION AND ACCOMPANYING
EXPLANATORY MEMORANDUM ARE NOT CLEAR ON FOUR MATTERS OF
CONSIDERABLE IMPORTANCE TO THE UNITED STATES. ACCORDINGLY WE
ARE SEEKING CLARIFICATION FROM THE GOI.

11. FIRST, THE REGULATION DOES NOT MAKE CLEAR THAT, EXCEPT
FOR
INTERNAL WATERS WITHIN ARCHIPELAGIC WATERS, ALL SHIPS ENJOY
THE RIGHT OF INNOCENT PASSAGE IN THE ALL OF THE INDONESIAN
ARCHIPELAGIC WATERS AND ADJACENT TERRITORIAL SEA, AS
PRESCRIBED IN ARTICLE 52(1) OF THE LOS CONVENTION AND
PARAGRAPH 6.5 OF PART H OF THE IMO SHIPS' ROUTEING GUIDE, AND
NOT JUST THE WATERS OF THE ASL AS MIGHT BE INFERRED FROM
ARTICLE 13 OF THE REGULATION.

12. SECOND, THE REGULATION ALSO DOES NOT MAKE CLEAR THAT THE
RIGHT OF ASLP EXISTS THROUGH ALL ROUTES NORMALLY USED FOR
INTERNATIONAL NAVIGATION THROUGH OTHER PARTS OF THE
INDONESIAN ARCHIPELAGO, AS SET OUT IN ARTICLE 53(12) OF THE
LOS
CONVENTION AND PARAGRAPH 6.7 OF PART H OF THE IMO SHIPS'
ROUTEING GUIDE.

13. FINALLY, WHILE ARTICLE 14 OF REGULATION NO. 37 RECOGNIZES
THE EFFECT OF THE INDEPENDENCE OF EAST TIMOR, INDONESIA HAS
NOT ADVISED THE INTERNATIONAL COMMUNITY OF THE PRECISE
COORDINATES OF THE NEW LOCATION OF THE TERMINATION OF THE
AXES OF THE SPURS IIIA AND IIIB CAUSED BY THE CHANGE IN THE
STATUS OF THE WATERS THROUGH WHICH THOSE SPURS PASS IN THE
VICINITY OF EAST TIMOR FROM INDONESIAN ARCHIPELAGIC WATERS
AND TERRITORIAL SEA TO INTERNATIONAL STRAITS. NOR HAS
INDONESIA
REVISED THE ARCHIPELAGIC STRAIGHT BASELINES THAT ARE MEASURED
FROM BASEPOINTS ON EAST TIMOR TERRITORY.

ACTION REQUEST
--------------

14. ACTION REQUESTED. POST IS REQUESTED TO DELIVER THE
DIPLOMATIC NOTE IN PARAGRAPH 15 TO APPROPRIATE HIGH LEVEL
INDONESIAN OFFICIALS, SEEKING CLARIFICATION. UPON DELIVERY
OF
THE NOTE, POST IS REQUESTED TO INFORM THE DEPARTMENT OF THE
DATE OF THE NOTE, THE DATE OF DELIVERY, AND ANY REACTION
THERETO. IN PRESENTING THE NOTE POST MAY DRAW UPON THE
FOREGOING, AND INDICATE THE WILLINGNESS OF UNITED STATES
OFFICIALS, IF NECESSARY, TO DISCUSS THE MATTER IN PERSON.

15. BEGIN TEXT OF THIRD PERSON DIPLOMATIC NOTE:

(COMPLIMENTARY OPENING) AND REFERS TO INDONESIAN REGULATION
NO. 37 OF 28 JUNE 2002 ON THE RIGHTS AND OBLIGATIONS OF
FOREIGN SHIPS AND AIRCRAFT EXERCISING THE RIGHT OF
ARCHIPELAGIC SEA LANES PASSAGE THROUGH DESIGNATED
ARCHIPELAGIC
SEA LANES, AND SEEKS AS A MATTER OF SOME URGENCY
CLARIFICATION OF SEVERAL OF ITS PROVISIONS.

THE UNITED STATES RECALLS THE EXCHANGE OF NOTES ACCOMPANYING
THE UNITED STATES-INDONESIA CONVENTION FOR THE AVOIDANCE OF
DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH
RESPECT TO TAXES ON INCOME, AND RELATED PROTOCOL, OF JULY 11,
1988, BY WHICH THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
AGREED THAT IT WILL APPLY THE ARCHIPELAGIC STATES PRINCIPLES
"IN ACCORDANCE WITH PART IV OF THE 1982 UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA AND . . . RESPECT() THE
INTERNATIONAL RIGHTS AND OBLIGATIONS PERTAINING TO TRANSIT OF
THE INDONESIAN ARCHIPELAGIC WATERS IN ACCORDANCE WITH
INTERNATIONAL LAW AND REFLECTED IN THAT PART."

THE GOVERNMENT OF THE UNITED STATES HAS CAREFULLY REVIEWED
THE
ENGLISH TRANSLATION OF INDONESIAN REGULATION NO. 37 OF 2002
AS PUBLICIZED BY IMO CIRCULAR SN/CIRC.200/ADD.1 OF JULY 3,
2003.
THE UNITED STATES IS PLEASED TO INFORM THE GOVERNMENT OF THE
REPUBLIC OF INDONESIA THAT IT CONSIDERS FOR THE MOST PART THE
REGULATION AND ITS ANNEXES FAITHFULLY FOLLOW THE PROVISIONS
OF
PART IV OF THE 1982 LAW OF THE SEA CONVENTION AND THE SEA
LANES ADOPTED BY THE IMO IN 1998. IN THAT CONNECTION, THE
GOVERNMENT OF THE UNITED STATES WISHES TO INFORM THE
GOVERNMENT OF THE REPUBLIC OF INDONESIA OF ITS UNDERSTANDING
THAT:

-- AS THIS IS A PARTIAL DESIGNATION OF ARCHIPELAGIC SEA LANES
THROUGH THE INDONESIAN ARCHIPELAGO, THE RIGHT OF THE SHIPS
AND
AIRCRAFT OF ALL STATES TO EXERCISE ARCHIPELAGIC SEA LANES
PASSAGE CONTINUES ON ALL NORMAL ROUTES USED FOR INTERNATIONAL
NAVIGATION THROUGH OTHER PARTS OF THE INDONESIAN ARCHIPELAGO,
AS PROVIDED IN ARTICLE 53(12) OF THE LAW OF THE SEA
CONVENTION
AND PARAGRAPH 6.7 OF PART H OF THE IMO SHIPS' ROUTEING GUIDE,
AND

-- THE RIGHT OF INNOCENT PASSAGE EXISTS FOR THE SHIPS OF ALL
STATES IN ALL OF INDONESIA'S ARCHIPELAGIC WATERS (EXCEPT FOR
INTERNAL WATERS WITHIN ARCHIPELAGIC WATERS) AND TERRITORIAL
SEA, AS PROVIDED IN ARTICLE 52(1) OF THE LAW OF THE SEA
CONVENTION AND PARAGRAPH 6.5 OF PART H OF THE IMO SHIPS'
ROUTEING GUIDE.

THE UNITED STATES WOULD APPRECIATE A NOTE IN REPLY CONFIRMING
THAT INDONESIA AGREES WITH THESE UNDERSTANDINGS.

IN ADDITION, THE UNITED STATES WOULD APPRECIATE BEING ADVISED
OF THE COORDINATES (LATITUDE AND LONGITUDE) OF THE SOUTHERN
TERMINATION OF THE AXES OF SPURS IIIA AND IIIB RESULTING FROM
THE CHANGE IN STATUS OF EAST TIMOR SINCE THE SEA LANES WERE
ADOPTED BY THE IMO IN 1998.

FINALLY, THE UNITED STATES WOULD APPRECIATE BEING INFORMED OF
INDONESIA'S INTENTIONS WITH REGARD TO THOSE ARCHIPELAGIC
STRAIGHT BASELINES THAT ARE MEASURED FROM BASEPOINTS ON EAST
TIMOR TERRITORY PURSUANT TO LAW NO. 4 OF 1960.

THE UNITED STATES WOULD APPRECIATE AN EARLY REPLY SO THAT IT
MAY PROVIDE APPROPRIATE GUIDANCE TO ITS FORCES PRIOR TO THE
IMPLEMENTATION OF THE SEA LANES AND REGULATION ON DECEMBER
27,
2003.

THE UNITED STATES IS PREPARED TO ENGAGE IN ANY NECESSARY
CONSULTATION WITH INDONESIA OFFICIALS AS MAY BE NECESSARY TO
REACH A MUTUALLY SATISFACTORY CLARIFICATION OF THESE POINTS.

(COMPLIMENTARY CLOSE)

END TEXT OF DIPLOMATIC NOTE.

16. FYI EMBASSIES CANBERRA AND LONDON. DEPARTMENT
(L/OES-ASH
ROACH) IS COORDINATING ON THIS MATTER WITH DFAT SEA LAW
SECTION PAUL PANAYI AND FCO ASSISTANT LEGAL ADVISER HELEN
MULVEIN, TO WHOM COPIES OF THE DEMARCHE MAY PROVIDED.
POWELL

NNNN



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