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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 PakMochtar 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. PakMochtar 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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