Rethinking Nusantara Indonesia: Legal Approach

As one of the proponents of the archipelagic State concept, Indonesia considers the archipelagic State regime as Nusantara. Indonesia believes that the waters surrounding the islands considered an integral part of the island and part of its State territory. However, Indonesia seem to realize that Nusantara has to adopt the International community interest such as providing sea lanes of communication and addressing the challenges ensuing from conducting activities within its waters and surrounding. These balances of interest stipulated in the provision of the United Nations Convention on the Law of the Sea 1982 (LOSC). Indonesia seems very satisfied when the archipelagic state concept has been adopted in the LOSC, but there are many issues exist when discussing the implementation of the Nusantara.The purpose of this paper is to provide an overview of historical context of Nusantara within International law of the sea. Following the discussion it will also highlight a number of obligation as archipelagic State which may different from the concept of Nusantara from first place and balance needed between International community and Indonesia in difference interests.

LOSC defines an 'archipelago' as "a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such." 18 Indonesia was active in the negotiation of the archipelagic State concept. 19 It was motivated by a desire to realise its aspirations for national unity, political stability, economic development, social justice, and national security. 20 These aspirations were expressed as "nusantara", a concept which falls somewhere between the traditional notion of 'islands ' and 'archipelago'. 21 The nusantara concept was further developed in the government's maritime policy through "Wawasan Nusantara" or the "Archipelagic Outlook", which advocated and stressed Indonesian unity. 22 The adoption of the archipelagic State concept in the LOSC has given Indonesia the opportunity to address issues of national sovereignty and has granted Indonesia the jurisdiction over living and non living resources. The LOSC has provided Indonesia with the right to extend its sovereignty and jurisdiction over large ocean areas. Part IV of the LOSC, particularly Articles 47 to 52 deals with the extent of maritime jurisdiction, exploration, exploitation, conservation and utilisation Countries (1973) 116; Dale Andrew, 'Archipelagos and the Law of the Sea: Island Straits States or Island-Studded Sea Space? ' (1978) 2(1) Marine Policy 46; Jens Eversen, 'Certain Legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagos' (Paper presented at the UN Conference on the Law of the Sea, Official Records, Geneve, 1958), 300, 302. Eversen pointed out that geographical fea-geographical features or geographical realities of the archipelago should be used in deciding whether a group of islands and the waters separating them could be treated as a single unit. 18 Article 46 (b), LOSC. 19 See, Mochtar Kusumaatmadja, Indonesia dan Perkembangan Hukum Laut Dewasa ini (1977) Keamanan (1982) (in Indonesian), 5-17. 21 The concepts brought to the fore in 1957 when Prime Minister, Mr Djuanda, declared that Indonesia is an archipelagic State. 22 See, Mochtar Kusumaatmadja, above n 9; Munadjat Danusaputro, Wawasan Nusantara: Dalam Ilmu Politik dan Hukum (1978)  of marine resources within Indonesia's archipelagic waters. Indonesia, as an archipelagic State, has to fulfil certain obligations as stated in the LOSC, such as maintaining safety of navigation, 23 designating sea lanes for ships and aircraft traffic, 24 and preserving and protecting the marine environment. 25 The LOSC recognises the sovereignty of the archipelagic State in archipelagic waters. 26 However, this sovereignty is limited in Article 2(3) of the LOSC which states that this sovereignty is exercised subject to this Convention and to other rules of international law. There are similar limitations on State sovereignty in archipelagic waters such as the right of archipelagic sea lanes passage by foreign ships, overflight of foreign aircrafts, and other marine activities.
This paper focuses on the establishment of nusantara within international law. The paper provides an historical overview of the development of the concept of the archipelagic State. The paper also discusses the consequences of Indonesia being an archipelagic State within the framework of navigational rights and freedoms under international law. It also examines the responsibilities of archipelagic states/Indonesia with respect to accommodate the international community. Finally, the paper will demonstrate that while the LOSC has provided extended areas of sovereignty and sovereign rights of archipelagic State, it also has some disadvantages when in comes to implementation.

II . THE INDONESIAN ARCHIPELAGIC OUTLOOK
The Republic of Indonesia is the largest archipelagic State in the world, consisting of 17,504 islands. 27 Indonesia extends along the equator, straddles the continents of Asia and Australia, and is flanked by the 23 Articles 21, 52, LOSC. 24 Article 53, LOSC. 25 Article 192 (Part XII), LOSC. 26 Articles 2 (1) and 49, LOSC. 27 Originally, Indonesia had 17,508 islands based on the publication of Dishidros TNI AL (Indonesian Hydro-Oceanographic Office) on Figures of Indonesian Territory, however, after the Republic of Timor Leste gained its independence in 1999, includes two islands (Arturo and Yako Islands) and the decision of the International Court of Justice (ICJ) on the sovereignty over Sipadan and Ligitan Islands in 2002, where both islands were transferred to Malaysia.
Indian and Pacific Oceans. The territory of the Republic of Indonesia stretches from Pulau Rondo off the northern tip of Sumatra in the west longitude 94° 58' East to Merauke, Papua in the east longitude 141° East and from Pulau Miangas in the north to Pulau Dana in the south.
With an overall distance of more than 1,900 kilometres from east to west, Indonesia covers an area as vast as Europe; however, nearly 80 per cent of the area between the abovementioned geographical extremities is made of seas.
History of Nusantara can be traced back from the first century AD, there has been continuous trade among people on the Indonesian archipelago, India and China. 28 Trade created close relations in many areas such as religion, arts, and government. 29 The fact that Indonesia is located halfway between India and China has been an important factor in the formation of Indonesian culture. 30 Indian and Chinese traders made stop-overs to replenish their supplies of fresh water and food and Indonesians visited India and brought back Hinduism. In port cities in particular, Chinese and Indian traders influenced the local Indonesian culture. 31 Evidence of Indian and Chinese cultures and religions can still be found in certain parts of Indonesia, for example, in Indonesian drama, architecture, literature, textile design, as well as in elements of religion. 32 According to Caldwell,33 Indonesia has a unique ability to synthesise different ingredients, accepting the new without discarding the old, absorbing and blending rather than substituting. At the same time the sea barrier between the islands has resulted in the fact that each island developed uniquely, shaping and moulding its own cultures. The variety of Indonesian cultures can be found in many places and spread across the entire archipelago, for example traditional music instruments 474 Volume 13 Number 4 July 2016 Jurnal Hukum Internasional can be found in many islands, batik can be found almost in all islands and ethnics.
With regard to Indonesia's political evolution, many kingdoms and states rose and fell in various parts of the archipelago during the centuries preceding western colonialism. 34 Although most of these states had localised jurisdiction, there were two great kingdoms which stood out namely Majapahit and Sriwijaya. The Sriwijaya Empire, located in Sumatra, reigned from the 7 th to the 13 th century. The empire encompassed most of present-day Indonesia and included some parts of the Asian mainland. 35 The empire became a great maritime and trading power as well as a centre for Buddhist learning. 36 The Majapahit Empire, based in Java and founded in 1292, succeeded in uniting much of the archipelago. The latter empire was bigger than Sriwijaya and had a great maritime fleet which played a large role in uniting all the islands. 37 The Majapahit Empire lasted until the 16 th century. 38 Well before that time, It seems that Indonesia was being affected by two new forces, Islam and the Europeans.
Islam was introduced by Arab traders soon after the birth of Islam in the 7 th century. 39 In the early 15 th century, Malacca became a major Islamic trading centre and Islam spread more quickly to the whole archipelago. 40 Although Islam spread rapidly, it took on new forms which were infusions, combinations and blends with old traditions and cultures which already existed, such as Hinduism, Buddhism and animistic practices. 41 Polo, followed by Portuguese and Spanish explorers. 42 The Portuguese and Spanish captured various trading centres and occupied some Indonesian territory. The English and Dutch challenged the Portuguese and Spanish hold, which were gradually expelled from the archipelago. 43 The English stayed on the Malacca peninsula while the Dutch occupied and controlled most of Java and others islands. The archipelago became known as the Dutch East Indies. Although it was for only five years, the British took over the archipelago from the Dutch, with Thomas Stanford Raffles as the British chief administrator in the archipelago. 44 The Dutch resumed control of the archipelago and continued to convert land into plantation in order to produce export commodities. Java became a vast Dutch government plantation. Serious famine occurred in Java because the Dutch neglected to plant food crops and the people were forced to become labourers or slaves.
The independence movement began long before its final success. In 1629, Sultan Agung, the King of Mataram, sent troops to attack the Dutch in Batavia. 45 There were several revolts and uprisings which took place in Aceh, Bali, Java and many other parts of the archipelago. The movements failed because the Dutch used a "divide et impera" system whereby the Dutch chose local rulers and used them to control areas. The system was economical and proved successful in the suppression of popular movements. During that time, the Dutch allowed some young Indonesians, who had studied in Netherlands, to handle administrative jobs. But the students had also studied political movements and they proceeded to establish a political party. 46 The Youth Pledge of 1928 expressed the ideals of one nation, one language, and one motherland or Tanah air. 47 It was the first political manifestation of the concept of national unity and was inspired by a nationalist movement which aimed to lead the national struggle for independence.
In 1942, the Japanese came to the archipelago and took over all systems of government. They set up some steps for independence such as allowing the use of the Indonesian flag, the national anthem and Bahasa Indonesia as the national language. But, overall, the Japanese treated the native population worse than the Dutch. 48 People were starving and there was famine everywhere. The Japanese established Indonesian officer armies and created quasi-military youth organisations which later formed the core of the Indonesian armed forces. 49 Indonesia declared its independence on 17 August 1945, two days after Japan surrendered to the Allies. 50 The victorious powers, however, allowed the Dutch to return and reclaim its former colony, Indonesia, which had been occupied by Japan since 1942. In order to defend its independence, the Indonesian people had to fight better armed and trained Dutch soldiers in a war for its independence. The poorly armed and trained Indonesian people were able to overcome the professional Dutch military forces because the Indonesian forces were fully supported by the native population throughout the lengthy guerrilla war. 51 This experience made the country realise that Indonesia's defence must rely on the unity between its armed forces and civilian population. 52 The 47 "Tanah Air" means "Motherland" in Bahasa Indonesia. See, Indonesian National Defence Council, Pokok-pokok Pengertian dan Sejarah Pengembangan Wawasan Nusantara (1982) (in Indonesian).

48
Robert van Neil, 'From Netherlands East Indies to Republic of Indonesia 1940-1945, The Development of Indonesian Society (1979) 106, 162-63. 49 Harold Crouch, 'The Trend to Authoritarianism: The Post 1945 period' in Harry Aveling (ed), The Development of Indonesian Society (1979) 165, 168;Rosihan Anwar, Musim Berganti: Sekilas Sejarah Indonesia, 1925-1950(1985, (in Indonesia), 124-129. 50 Japan surrendered to the Allied on 15 August 1945, with the surrender documents finally signed aboard the deck of the American battleship USS Missouri on September 2, 1945. See, Mark Donnely, Britain in the Second World War (1 st ed, 1999). 51 Nugroho Notosusanto, The National Struggle and Armed Forces in Indonesia (Second ed, 1980), (in Indonesia), 6; G Moeljanto, above n 35, 96-189. 52 The defence system which focused on the unity of armed forces and the people is called Hankamrata (Total People's Defence). The armed forces would act as a core to revolutionary experience gave the nation a strong sense of self-confidence in its ability to defend the country against a hostile foreign power. In addition, the experience shaped Indonesia's defence and security outlook, focusing it on the unity of the nation. The notion of national unity, known as "Wawasan Nusantara" or the 'Archipelagic Outlook or Principle' unites the Indonesian archipelago into an indivisible "Tanah Air", or "Place of Land and Water for all Indonesians." 53 The archipelagic outlook clearly envisages the islands and the surrounding seas as a single unit.
The Wawasan Nusantara doctrine was reflected in Indonesia's geopolitical concern for its maritime territory. There were three catalysts for this doctrine. 54 First, the Indonesian elite started to realise that Indonesia needed a new doctrine to integrate the maritime territory into its land territory as a single entity. Second, the location of Indonesia at the cross-roads of world trade puts Indonesia in both an advantageous and vulnerable position. Third, there was heightened concern surrounding foreign maritime passages within the archipelago. The last concern related specifically to the activities of the Dutch warships while Indonesia campaigned for the transfer of Papua (Irian Jaya) 55 from Dutch to Indonesian rule from 1950 to 1962. 56 Having considered the location of Indonesia, the Wawasan Nusantara doctrine developed along with understanding of Indonesia's archipelagic outlook. Its geographical setting came to be considered with other aspects, such as demography, natural resources, ideology, politics, economics, social and cultural aspects, and defence and security. Those aspects were known as "asta gatra" which means 'eight mobilise the entire population against the enemy. 53 Munadjat Danusaputro, above n 5, 31. 54 Lemhanas (Indonesian National Defence Council), above n 6, 4-15. 55 Papua is the current official name of the territory known successively as Netherlands New Guinea, West New Guinea, West Irian and Irian Jaya. The Name of Papua will be used throughout for consistency, except for the name of Treaty. 56 In spite of the fact that the Dutch Government did not recognise the independence of Indonesia, the Dutch still ruled in West Papua (Irian Jaya) until 1962. In that time, Dutch Navy always passed through the Java Sea and waters surround the Indonesian islands.

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Volume 13 Number 4 July 2016 Jurnal Hukum Internasional aspects', 57 which the first gatra (aspect) is geographical setting. 58 The Wawasan Nusantara doctrine promoted both an inward and outward looking perspectives. 59 At a national level (that is, the inwardlooking perspective), it emphasizes the notion of Indonesia as one political, economic and security entity. Internationally, (that is from an outward-looking perspective), the promotion of Wawasan Nusantara is designed to advance the security of Indonesian territorial waters. 60 The Wawasan Nusantara doctrine would go on to provide substance to Indonesia's perceptions and interests in maritime matters in subsequent years, regarding maritime boundaries, navigational regimes and managing natural resources. In these maritime zones, Indonesia has sovereignty, which is the same as the sovereignty over land and air space.

III .1 . DEVELOPMENT OF INDONESIA'S MARITIME POLICY
The arrival of the European powers, with their ambitions for the expansion of their overseas colonial empires, brought with them the concept of mare clausum. However, the Dutch interest in the East Indies, supported by the legal doctrine of mare liberum developed by Grotius and others, necessitated advocacy of the principle of freedom of the high seas, in contradiction to the Portuguese and Spanish views on the matter. According to Alexandrowicz the Portuguese attempted to limit the access of competitors to the high seas in the East Indies. 61 With the gradual achievement of supremacy by the Dutch in the East Indies during the 18 th and 19 th centuries, the original customary law position came to be restored in the form of Dutch practice. 62 57 "Astra gatra"/aspect is divided into two categories namely three "gatra"/aspects and five "gatra"/aspects. The three aspects known as tangible aspects consist of Indonesia's geographical position, natural resources, and population. The five "gatra" known which are the intangible aspects consist of ideology, politic, economic, sociocultural, defence and security.

58
Indonesian National Defence Council, above n 6, .5-16; Munadjat Danusaputro, above n 5, 10-27. 59 Lemhanas (Indonesian National Defence Council), above n 6, 7. 60 Ibid, 9. 61 C H Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (1967), 64-65. 62 Ibid, 65. He hypothesized that Grotius apparently derived support for his treaties The Dutch Government applied regulations which conformed to the general practices of the law of the sea at that time to regulate the territorial sea in the Dutch East Indies. These regulations were based on the development of the law of the sea; for example, in 1893 there was Ordinance Number 261 regulating pearl fishery in the territorial sea of the Netherlands Indies. 63 Second, in 1902, there was Ordinance Number 4 regulating pearl fishery within the distance of no more than three nautical miles off the coasts of the Netherlands Indies. 64 Third, in 1905, the Government of Dutch East Indies declared Ordinance Number 436, amending the Ordinance Number 4 of 1902 defines the territory to include rocks, reefs and banks exposed at the low water line. 65 During the colonial era, the territorial waters of Indonesia inherited from the Dutch East Indies were fixed generally at three nautical miles from the coast, as stated in Article 1(1) of the Territoriale Zee en Maritieme Kringen Ordonatie of 1939. 66 Consequently, Indonesia consisted of so many units of islands, each being separated from the others by so-called high seas as shown in Figure    Since some of Indonesia's islands or groups of islands lay more than six miles apart, the three nautical miles territorial sea could not enclose the archipelago within a single jurisdiction. Consequently, each island had their own respective territorial waters and there was a gap between islands which consisted of high seas. As a result, the major part of Java, Banda, Maluku, and Natuna Seas which form the heart of the Indonesian archipelago, were considered high seas. 69 The colonial territorial arrangement did not favour Indonesia's interests. The three nautical miles regulation was a long way from the objective of the independence movement, which was to unite Indonesia. This made it very difficult for the government to execute various functions of the government, such as defence and security, law enforcement, administration, and economic development. 70 Along with that, the three nautical miles regulation placed Indonesia in a fragile situation in terms of territorial integrity, since the presence of pockets of open sea gave opportunity to hostile external elements which used the cover of the high seas to support local political unrest on the islands. 71 Economically, the three nautical miles territorial sea limit meant Indonesia was vulnerable insofar as economic and fishing activities were concerned. Foreign fishing vessels invoking the right of fishing in the "high seas" (seas between Indonesia's islands) were coming close to the coast of islands within three nautical miles of the coast or even closer. 72 The presence of foreign fishing vessels with modern equipment adversely affected the local fishermen due to their old-fashioned and traditional methods of fishing. The local fishermen were left unprotected from this foreign competition. Due to these reasons, the Indonesian government had to protect the fishermen and did not tolerate the activities of foreign fishing vessels. As stated by Mauna, "foreign States, which were much more advanced in their technology, could easily deplete our fisheries resources on our neaPolitically, after independence, Indonesia needed to strengthen national unity, political stability and national security. There were several separatist and regional political movements which wished to secede from Indonesia. Domestic dissent was mostly caused by island sentimentality for the colonial regime, as the result of the colonial policy in the past which had favoured certain islands over others. 73 The struggle to liberate Papua (West Irian/Irian Jaya) was also a prominent issue which supported the notion of the Indonesian archipelagic State concept. The pockets of sea known as "high seas" between the Indonesian islands meant the Dutch Navy could pass through Jurnal Hukum Internasional such areas very easily and it was considered by Indonesia as provocation. The Dutch naval presence in Indonesian waters was well aware of this, as the Dutch strategy was maintaining sovereignty in Papua and also keeping logistic communication between Papua and Holland. The Dutch Navy was always operating on the Java Sea and the inland seas on the eastern part of the Indonesia territory by flying its flag and traversing between Papua and Holland. 74 As stated by the Indonesian Foreign Ministry: "The presence of pockets of open seas, due to its freedom of navigation, all states could conduct all kinds of activities there, even war." 75 This illustrated the vulnerability of the Indonesian maritime territory for the purpose of defence.

III .2 . DEVELOPMENT OF THE ARCHIPELAGIC STATE CON-CEPT OF INDONESIA
Between 1953 and 1957 there were many elements which combined to highlight the need for uniting the territory of Indonesia. These elements included growing unrest in regions outside Java, army commanders in a number of regions declaring martial law, Sukarno declaring martial law over the whole country, Sukarno setting up a "business cabinet" headed by Djuanda Kartawidjaja, labour unions taking over Dutch enterprises, and tensions between Indonesia and the Netherlands over West New Guinea escalating. 76 In addition, in 1955 the Philippines submitted a note verbale to the United Nations which stated that "all waters around, between and connecting different islands belonging to the Philippines Archipelago, irrespective of their width or dimension, are necessary appurtenances of its land territory, forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines". 77 The Philippine position thus supported the 74 James Cable, Gunboat Diplomacy, 1919, 234.

Indonesian position.
On 13 December 1957, the Indonesian Prime Minister Djuanda Kartawidjaja made a Declaration to override the colonial maritime territorial regulations in favour of a completely new territorial concept. The territorial concept known as the Djuanda Declaration asserted a radical approach to maritime claims: The Government declares that all waters surrounding, between and connecting the islands constituting the Indonesian State, regardless of their extension or breadth, are integral parts of the territory of the Indonesian State and therefore, parts of the internal or national waters which are under the exclusive sovereignty of the Indonesian State.
[…] The delimitation of the territorial sea (the breadth of which is 12 nautical miles) is measured from baselines connecting the outermost points of the islands of Indonesia. 78 The Djuanda Declaration stated that Article 1(1) of the colonial maritime ordinance, concerning territorial and maritime boundaries, was no longer in accord with the needs of an independent Indonesia. The Declaration itself did not have the force of law under the then constitution. 79 Nonetheless, it clearly stated the policy of the Republic in relation to its territorial integrity and protection of natural wealth. Although not carrying the force of a formal repeal, this statement of policy might be considered sufficient evidence of conflict with principles embodied in the Indonesian Constitution such that the colonial law on the limits of national jurisdiction in Indonesia waters would have been held void by the Indonesian courts. 80 The Declaration itself was a political statement and revoked certain provisions of the 1939 Territorial Sea and Maritime Areas Ordinance, so the Indonesian government had to create a legal basis for its new maritime assertion.  81 The new law provided more details on the nature and extent of Indonesian waters compared to the Djuanda Declaration. Article 1 of the Act provided that the territorial sea extends 12 nautical miles outward from the baselines drawn around the outermost islands of the Indonesian archipelago. All waters enclosed by the baselines declared in Article 2 were regarded as internal waters. These internal waters and territorial sea were regarded as Indonesian waters within the meaning of the regulation. The law also provided that straits of less than 24 nautical miles width, which belonged to one or more foreign States, shall be divided at the mid-point. Article 3 provided that the government may regulate the innocent passage by means of executive regulation. Finally, Article 4 stated that the new law repealed the contradictory provisions of the Dutch colonial ordinance.
Having considered the interest of user States in navigational matters, the Government of Indonesia also took into account the innocent passage of foreign vessels in Indonesian waters by permitting such passage so long as it was not prejudicial to the security of Indonesia. The innocent passage regime was further implemented through Government Regulation Number 8 of 1962 on Innocent Passage of Foreign Vessels in Indonesian Waters. The regulation clarified the conditions under which Indonesia would allow innocent passage. However, it seemed to contain some significant deviations from the innocent passage recognised by the international community. Article 1 of this Government Regulation guaranteed innocent passage, although the definition which had been used in subsequent articles narrowed the definition. Innocent passage was defined as "navigation with a peaceful purpose which travels through the territorial sea and internal waters of Indonesia from high seas to high seas". This means that passage from the high seas to the territorial sea of foreign States was not considered innocent passage. Article 4 purported to grant the President power to temporarily suspend innocent passage in Indonesian waters, including straits used for international navigation. Finally, Articles 5, 6 and 7 placed restrictions on fishing, research and naval vessels of foreign States. These restrictions included permit requirements for research vessels and prior notice by naval and other vessels of foreign States.
The Indonesian archipelagic State concept elicited strong opposition from maritime powers 82 such as the United States, 83 France, Netherlands, the United Kingdom 84 and Australia. 85 These States believed that the new territorial limit was invalid and would jeopardise world seaborne trade. 86 On the other hand, the Soviet Union and China supported the archipelagic concept. According to Hasjim Djalal, their endorsement was because Moscow and Beijing dedicated their naval forces for coastal defence, so they had no compelling strategic stake in the use of Indonesia's seas. 87 In the archipelago declaration and in its incorporation into municipal law, the Indonesian government did not draw any distinction between merchant ships and warships. It maintained, initially, that innocent passage of foreign ships in these internal waters was granted so long as it was not prejudicial to or violates the sovereignty of Indonesia and subsequently, that innocent passage through the internal waters of Indonesia was open to foreign ships. It was clear that the interpretation of what constituted innocent passage was the prerogative of the Indonesian Government.
The archipelagic State concept was raised in the First United Nations Conference on the Law of the Sea (UNCLOS) in 1958 but it was not recognised. The joint proposal submitted by the Philippines and Yugoslavia concerning archipelagos was defeated. 88 In UNCLOS II in 82 D P O'Connell, above n 16, 39. 83 The verbatim statement by the US Delegation could be found in: United Nations Conferences on the Law of the Sea: Official Records, First Conference, 1958 2-3, William S. Hein &Co 2 nd edition, New York, 1980. 84 The United Kingdom stated that the term "archipelago" applies only to a small, compact group of islands, while the straight baseline principle applies only to sharply indented coasts and fringes of islands. NAA: A 1838,696/2/5 Part I. 85 Sahono Soebroto, Sunardi and Wahyono, 'Konvensi PBB tentang Hukum Laut', Sinar Harapan (Jakarta), 1983, vi, (in Indonesian). France submitted a formal protest on 8 January 1958; Netherlands on 7 January 1958; On 3 January 1958, Britain notified that the new territorial limit was invalid and thus not applicable to its citizens, ships, and airplanes. Australia followed suit on 3 January 1958.  permits: "sailing permits" and "security permits". 96 The sailing permits applied to all non-military foreign vessels, except non-military vessels engaged in activities which may affect Indonesian security, such as hydrographic surveys or which require operation in "closed or restricted areas." 97 Non-military vessels engaged in such activities and all foreign military vessels were required to obtain a "security clearance", from the Minister of Defence and Security. 98 Non-military vessels engaged in sensitive activities required both a sailing permit and a security clearance.
Until now, there are many laws and regulation on the implementation of LOSC, but it seems only maritime space issues that satisfied with Indonesian interest. When it deliberations on the utilization of the marine resources and also the interest of Indonesia on maritime safety and security, there are many issues that have to be regulated further.

IV . THE IMPORTANCE OF INDONESIAN WATERS
Indonesia, as the world's largest archipelagic State, consists of 17,504 islands, 99 with an approximate 7.73 million km 2 of sea territory made up of substantial living and non living natural resources. Indonesia and the international community have opposing interests. 100 The international community as user States argue that Indonesia has to leave open all routes normally used for international navigation and guaran-  101 On the other hand, Indonesia wishes to secure its national interests. In this respect, the preservation of the island group's unity is of key importance, along with jurisdiction over intervening waters and seabed areas. Thus, in certain cases, these interests overlap and often create conflict between Indonesia and the international community. Since Indonesian waters have many sea lanes of communication, and are therefore vital to world trade 102 and military movement, Indonesia's maritime policy regarding navigation will always be of interest to the international community. 103 Indonesian waters contain critical sea lanes of communication for sea-borne trade, naval movement, and other maritime interests. 104 In Indonesian waters, there are at least six choke points, comprising the Malacca Strait, Singapore Strait, Sunda Strait, Lombok Strait, Ombai and Wetar Straits; all of which are used for international navigation. 105 While Indonesia has strategic interests in commerce, peace, stability and security in the region, it must also address potentially negative effects associated with international navigation, such as marine pollution, degradation of marine resources and maritime criminal activities. 106 Although there is no exact statistic depicting the sea and air traffic passing through Indonesian waters, 107 it is believed that Indonesian wa-101 Interference to the passage will lead to time delay and extra costs for maritime transport. See, Kazumine Akimoto, 'Re-routing Options and Consequences' in Andrew Forbes (ed) It is difficult to find exact figures on the number of ships and aircraft which transverse Indonesian waters from the Department of Communication and Department ters are highly strategic because of their geographical locations. 108 Indonesian waters connects States in two continents: Asia 109 and Australia; 110 and two oceans: the Indian and Pacific Oceans. Every year, many ships pass through Indonesian waters using various straits 111 carrying cargo ranging from crude oil to finished products, coming from ports all over the world. 112 These Indonesian straits are known as the arteries of the world economy. 113 Indonesian waters are also used for movement of military auxiliaries between the Indian Ocean and the Pacific Ocean. 114 Indonesian waters have become the focus of strategic consideration by user States due to a number of factors, including economic, military and oil considerations. These factors are interrelated and exert distinct dynamic impacts and outcomes for all concerned States, including economic, socio-cultural, political and military considerations. In certain of Marine and Fisheries of Indonesia. The Balance Sheet of Indonesian Trade indicates that the export and import are increased significantly up to 137.020,4 (export) and 129.197,3 (import) valued Million US$ in 2008, sources National Portal of Republic of Indonesia <http://www.indonesia.go.id.> at 5 January 2009. Those export and import are related to Indonesian seaborne trade because a major mode of transport for Indonesia's export and import is by sea. 108 Geography and Strategy setting could be read further in John H Noer and Gregory David, Chokepoints: Maritime Economic Concerns in Southeast Asia (1996); James E Toth, Military Strategy Note: Strategic Geography (1995). 109 Examples of emerging industry countries in Asia are China, Japan, India, Taiwan, and South Korea. 110 Australia is known as an exporter of coal and ore to industries' countries in Asia <http://www.dfat.gov.au/facts/trade_fast_facts.html.>, at 7 January 2009. 111 The straits of Malacca, Singapore, Lombok, and Makasar are the most important straits for international seaborne trade and also known as choke points within Indonesian waters.

cases, Indonesian waters turn out to be where all such interests converge. For instance, sea lanes of communication in Indonesian waters
give Indonesian waters a certain strategic value. The following section will explore the extent to which Indonesian waters have significant strategic implications from economic (particularly with regard to oil and gas), and military perspectives.

A. ECONOMIC IMPLICATIONS
David Ricardo has pointed out that States would benefit if they could use comparative advantages in the production and export of certain goods and if the transport costs of such exports do not exceed the margin. 115 There is no doubt that current global commodity trade continues to grow and, in certain aspects, has attained real strategic significance, particularly in the trade of oil, gas and minerals. Seaborne trade represents the most important mode of transport as it shortens the usually long distances between areas of the world where production costs differ significantly while also offering efficiency through the low cost of such transport. This is the reason that seaborne trade has become centrally important to the international economic system and a source of wealth. For example, in 2015, according to the United Nations Conference on Trade and Development (UNCTAD), the world economy embarked on a slow mowing recovery led by uneven growth in developed economies and a slowdown in developing countries and economies in transition. In 2014, the world gross domestic product (GDP) increased marginally by 2.5 per cent, up from 2.4 per cent in 2013. Meanwhile, world merchandise trade increased by 2.3 per cent; this is down from 2.6 per cent in 2013 and below the pre crisis levels. 116 According to Baldwin, the key seaborne trade trends for the Asia-Pacific over the next 10 to 20 years will be based on energy fuels and mineral exports, value-added manufactures, and agricultural produce, including grains and meat. 117 These commodities will be transported to other countries by sea and most of them will pass through Indonesian waters. Thus, Indonesian waters have a strategic impact on the economy of not only the region, but also the entire world, especially on seaborne trade, as can be seen in. nomic development of Asian countries comes with a heavy price: a high dependence on the import of raw materials, especially oil. For example, since 1993 China has had to import large volumes of crude oil to satisfy economic demands, particularly demand from its own industries. At least 32 per cent of China's oil is imported from the Middle East. 121 It is obvious that the bulk of the Middle Eastern oil to Northeast Asian economies such as China, Japan, Taiwan, and South Korea, will pass through Indonesian waters, such as the Straits of Malacca, Lombok, or Sunda. The uninterrupted flow of imported energy must be secured so as not to jeopardise economic growth.
Moreover, in addition to oil, these countries also need coal and gas, including liquid natural gas. Australia is one of the world's biggest exporters of coal and iron ore. 122 Ships carrying coal and iron ore from Australia will pass through Indonesian waters. 123 Like Australia, Indonesia too is an exporter of mineral resources to countries such as China, India, Japan and South Korea.

B. NAVAL MOVEMENT
There is no doubt that securing energy flow usually parallels a need to secure the movement of naval auxiliaries so that they may guarantee the security of energy supplies. 124 In addition, regional stability also requires the presence of naval forces. Thus, in certain circumstances, States tend to build up their naval forces in order to secure their inter-  Australia's largest merchandise trading countries are China, Japan, the United States and the Republic of Korea, <http://www.dfat.gov.au/facts/trade_fast_facts. html.>, at 7 January 2009. Data of export and import of Australia <http://www.dfat. gov.au/publications/stats-pubs/dme/direction_exports_0708.pdf.>, at 7 January 2013. 124 According to Sir Walter Raleigh, "Whosoever commands the sea commands the trade; whosoever commands the trade of the world commands the riches of the world, and consequently the world itself," cited in James E Toth, Military Strategy Note: Strategic Geography (1995), 94. ests. 125 While the presence of naval forces is necessary in certain circumstances, it sometimes may however create tension if such a presence is considered to threaten the sovereignty or interests of a coastal State. According to Bateman, 126 the maritime security scene in the Asia-Pacific region is currently volatile. This is due to threats of maritime terrorism, 127 bilateral tensions that occasionally re-surface, 128 and the ongoing problem of law and order at sea. Security concerns which interfere with navigation are very broad, but they can be limited to several activities such as piracy, terrorism, undocumented migration, trafficking of narcotic drugs and psychotropic substances, illegal fishing, and pollution. 129 These concerns sometimes require the involvement of military presence to be dealt with effectively. It is due to disputed claims to sovereignty over islands (Spratley, Paracel, Takeshima/Tokdo islands) or offshore areas (off Sipadan and Ligitan Islands).  the United States warships travelling to their allied countries such as Australia and Singapore usually pass through Indonesian waters. 133 The policy of 'places not bases' developed by the United States Forces in the Pacific for Southeast Asia is intended to enhance the United States strategic interests in maintaining regional stability and a credible power projection capability in the region and beyond. 134 This policy is also used to retain the United States influence in Asia on economic, capital and military access through the domination of sea lanes of communication. The Freedom of Navigation (FON) Program initiated by the Carter administration in 1979 and continued under Presidents Reagan, Bush, and Clinton, combines diplomatic action and the operational assertion of navigational rights. 135 This program emphasizes the use of naval exercises to discourage State claims inconsistent with customary international law, as reflected in the LOSC, and to demonstrate the United States resolve to protect navigational freedoms proclaimed in the LOSC. 136 The United States has always expounded the freedom of navigation as an important right for American military vessels while denying that same freedom to the former Soviet Union and China. 137 Moreover, the growing naval power of developing nations with regional ambitions, such as China and India, are rapidly building open ocean, 'blue water' naval capability which increases the requirements for the United States naval mobility. 138   tion during the Cold War was designed to create options for the United States Navy to navigate its warships and submarines from east to west and vice versa. 139 Navies in the Asia-Pacific region travel from and to parts of the region in order to patrol, or to perform courtesy or joint exercises. 140 These activities occur sometimes in Indonesian waters or adjacent to Indonesian's EEZ, so those participants' ships must first pass through Indonesian waters.

V . THE LAW OF THE SEA CONVENTION AND INDONESIA
Indonesia is an archipelagic State according to the provisions of the LOSC and domestic legislation. As an archipelagic State, Indonesia has rights and obligations based on international law and the LOSC. In order to implement the LOSC and international law, Indonesia has enacted a number of laws and regulations which form part of an extensive and complex regulatory framework such as Act Number 6  After considerable debate in UNCLOS III, 145 the archipelagic State concept was finally endorsed and became a new concept recognised under international law. Part IV of the LOSC incorporates the essential elements of the legal framework for archipelagic State. Although some of the provisions of Part IV are different from the Indonesian concept in the 1950s and 1960s, endorsement of the concept was a major diplomatic achievement for Indonesia and vindication of the Djuanda Declaration in 1957.
There are at least three differences between the provisions of the LOSC and the Indonesian concept in the 1950s and 1960s. The Indonesian concept only recognized internal waters and territorial sea as maritime zones under the sovereignty of Indonesia; whilst the LOSC provides internal waters, archipelagic waters, and territorial sea as maritime zones under sovereignty of archipelagic state. Basically, baselines in the 1950s and 1960s' Indonesian concept, was straight baselines which used to encompass all Indonesian archipelagos; the LOSC provides that many baselines such as normal baselines, straight baselines, archipelagic baselines can used to enclose territory of archipelagic state. In term of navigation, the Indonesian concept only recognized the right of innocent passage of foreign vessels in Indonesian waters; whilst the LOSC provides at least three navigational regimes namely innocent passage, transit passage, and archipelagic sea lanes passage that can be exercised in the maritime zones under sovereignty of the archipelagic State. One of the basic principles of the archipelagic State regime as incorporated in the LOSC is to allow archipelagic States, like Indonesia, to draw straight baselines joining the outermost points of the outermost islands and drying reefs of the archipelago, 146 thus creating archipelagic waters landward of the baselines. From the baseline, an archipelagic State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, its contiguous zone up to 24 nautical miles, its EEZ up to 200 nautical miles, and its continental shelf to the outer edge of the continental margin (which is measured seaward from the archipelagic baselines from which the territorial sea is measured). The archipelagic State has territorial sovereignty over the archipelagic waters enclosed by such baselines and over the 12 nautical miles territorial sea around the archipelago; it has sovereign rights over the natural resources of the EEZ and the continental shelf all the way to the outer edge of continental margin.
LOSC is the most comprehensive international treaty dealing with maritime affairs. 147 Although there are many gaps in LOSC, 148 but it covers almost the entire spectrum of ocean issues, including the designation of baselines, the establishment of the archipelagic State regime, the breadth of the territorial sea, the creation of 200 nautical miles exclusive economic zones (EEZs), definition of the outer limits of the continental shelf, seabed mining beyond areas of national jurisdiction, rules for navigation through straits, prevention of marine pollution, conduct of marine scientific research, fisheries management, and dispute settlement. Despite its wide-ranging provisions, there are still many issues which arise in the implementation of LOSC. These include controversial issues raised during its negotiation, such as issues relating to archipelagic states, passage rights, and deep seabed exploration. 149 In order to be accepted broadly and to accommodate the interests of all states, LOSC was adopted as a 'package deal' whereby coastal and user states 146 Article 47, LOSC. 147 The preamble of LOSC states that it covers all issues relating to maritime affairs. 148 For example, there is a gap between LOSC and the 1944 Convention on International Civil Aviation (the Chicago Convention) with regard to the legal principle of airspace above archipelagic waters. 149 See, Tommy T B Koh, 'Negotiating a New World Order for the Sea' (1983)(1984) 24 The balancing of interests in LOSC seeks to benefit and accommodate both the interests of archipelagic states as well as other, non-archipelagic, coastal states. 151 However, in terms of areas under territorial sovereignty, archipelagic states seem to benefit more than non-archipelagic states. However, the benefits of archipelagic status enjoyed by archipelagic states are offset by certain obligations under LOSC that they need to fulfil. 152 For example, an archipelagic state is required to provide sea lanes of communication, specifically archipelagic sea lanes, through and over archipelagic waters and guarantee the safety and security of such sea lanes. 153 An archipelagic state also has the obligation to address threats from marine pollution, criminal activities at sea, degradation of marine resources, and accommodate the interests of other states.
LOSC provides a delicate balance between the rights and duties of coastal states and foreign ships with respect to navigation rights through the waters of coastal states. 154 This balance of interests is achieved through the implementation of the sovereignty and sovereign rights of coastal states and the navigational rights of maritime states. LOSC does not recognize the term non-archipelagic state, this paper use this term to underline the differences between archipelagic and non archipelagic states. Archipelagic state is a coastal state as well, but not every coastal state entitled as an archipelagic state. To become archipelagic state, a coastal state has to fulfil criteria in articles 46 and 47 of LOSC. 152 LOSC art 49 mentions that an archipelagic state has to rely on the provisions of LOSC while exercising its sovereignty.

153
The concepts of maritime safety and maritime security became inextricably linked following 9/11. These concepts were reflected in the International Maritime Organization (IMO) changing its motto from 'safer ships, cleaner oceans' to 'safe, secure and efficient shipping on clean oceans.' Maritime states usually focus on the freedom of navigation in order to guarantee the movement of goods, peoples, and naval auxiliaries. 156 In contrast, coastal states are concerned with the proximity and density of vessel traffic and the possible negative impacts of shipping in their waters such as vessel-sourced pollution and maritime accidents which endanger the lives of their citizens and damage their properties and resources. 157 Moreover, dense traffic in certain straits may render it difficult or impossible for a coastal state to fully utilise its fisheries and seabed resources.
There are some obligations of archipelagic state which are to accommodate the rights of user states and ships, for example, by ensuring safe passage through and over its archipelagic waters, notably through innocent passage and archipelagic sea lane passage. Like other coastal states, archipelagic states need to allow innocent passage for ships in their territorial seas, 158 but they also need to facilitate innocent passage in archipelagic waters. 159 Further, coastal and archipelagic states need to allow transit passage for ships and aircraft passing through straits used for international navigation. 160 There are at least thirty obligations relating to the Indonesian waters as stipulated by the provisions of the LOSC (Parts II, III, and IV), which Indonesia must fulfil. 161 The right granted to other States in Indonesian waters generally satisfy the specific interests of neighbouring States, for example, the fishing rights, maintenance of existing submarine cable, and the rights of Singaporeans to conduct sea trials for ships in the  Articles 48,3,4,5,6,7,9,10 and 11; Article 48 insofar as it relates to Articles 3 -15, 33 (2), 50, 57, 76; and Article 49 insofar as it relates to Article 2 (3); Articles 51 -53.

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Volume 13 Number 4 July 2016 Jurnal Hukum Internasional Natuna Sea. Furthermore, Indonesia must accord certain rights to the international community regarding navigation; for example, by the designation of archipelagic sea lanes, and allowing innocent passage and transit passage though Indonesian waters. The rights granted to other States within archipelagic waters are based on pre-existing State practice in such waters.

A. RIGHTS OF INNOCENT PASSAGE
The freedom of navigation 162 is a universally-recognised rule of international law. In addition to freedom of navigation applying to shipping on the high seas, rights of access to and from the high seas and between different maritime zones 163 have also been recognised. For this reason, ships of all nations enjoy certain rights of navigation in some maritime zones which are subject to the sovereignty of coastal States.
As mentioned earlier, the maritime zones under the sovereignty of States consist of internal waters, archipelagic waters and territorial seas. However, in exercising its sovereignty, an archipelagic State is required to conform to the provisions in the LOSC and other rules of international law. 164 Both the LOSC and other established rules of customary international law attempt to reconcile the opposing interests of archipelagic States and the international community in specific maritime zones. 165 Limitations on the exercise of sovereignty in the LOSC and international law are effected through the granting of navigational and over flight rights through waters/area under sovereignty of coastal States. 162 The freedom of navigation has always been attributed to the great works of Hugo Grotius which were later questioned by John Selden. There are many authors wrote about freedom of navigation. Philipp Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law (2007)  The LOSC recognised maritime zones consist of internal waters, archipelagic waters, territorial sea, exclusive economic zone, and high seas. 164 Articles 2 (3) and 49 (3), LOSC. 165 Shekhar Ghosh, above n 163, 39.
The exercise of sovereignty and the duty to provide innocent passage to foreign ships results in two sets of competing interests, namely; the interests of coastal or archipelagic States and user States. On the one hand, coastal or archipelagic States wish to control their maritime zones in order to protect their national interests such as their economic well-being, the marine environment and security. 166 On the other hand, user States or flag States want free and unimpeded use of the same maritime zones which will ensure maximum freedom of access to the ocean for transportation, communication, and the production and exchange of raw material and goods. 167 This conflict of interest hinges on the issue of sovereignty and navigational rights. 168 The LOSC and international law try to balance these competing interests by providing rules and guidance. be seen that all provisions on those laws and regulations 172 on innocent passage always refer to provisions in the LOSC. 173 However, it is debatable whether Indonesia has indeed implemented the LOSC faithfully or whether there are any loopholes in its implementation which will create disputes in the future.

B. RIGHTS OF ARCHIPELAGIC SEA LANE PASSAGE
The archipelagic State has sovereignty over its archipelagic waters, including the super-adjacent airspace, seabed and subsoil, and the resources therein. 174 This sovereignty is subject to a number of rights enjoyed by foreign States, such as allowing passages through the archipelagic waters, 175 the obligation to respect existing agreements with other States, recognition of traditional fishing rights and other legitimate activities, 176 and respect for existing submarine cables and permit maintenance and replacement of such cables. 177 The right of passage of user States was one of the contentious issues in the negotiation of the LOSC provisions on the archipelagic waters. 178 The final text adopted was a compromise which attempted to balance the interests of coastal States includes archipelagic States and user States. 179 The regime of archipelagic sea lane passage evolved as an attempt to balance the territorial integrity and national security of the archipelagic States with the right of transit through passageways which fall within the archipelagic waters. As Wisnumurti notes: '… the regime of archipelagic sea lanes passage is a compromise between the regime of innocent passage advocated by Indonesia (on the basis of the 1957 Djuanda Declaration and the 1960 Law No. 4) and the other archipelagic States, …and the regime of freedom of navigation advocated by the maritime powers…' 180 This was a key issue because of the insistence by major naval powers in the Conference on the necessity of an assured right of transit for all vessels and aircraft through and over archipelagic waters. 181 The exercise of the right of archipelagic sea lanes passage was a new type of passage introduced by the LOSC. Djalal points out that the exercise of the archipelagic sea lane passage is in accordance with the rules of international law and is not in strict conformity with the LOSC since there has been no rule of international law in the past on this matter. 182 The designation of archipelagic sea lane passage itself poses some problems. The determination and the designation of sea lanes would not be easy since it would involve questions as to how many sea lanes should be designated, how to designate, and how to monitor and to regulate them in national legislation. 183 Indonesia would have to designate sea lanes through its archipelagic waters in which foreign vessels and aircraft are able to exercise the right of archipelagic sea lane passage. The designation of archipelagic sea lanes is the right of the archipelagic State but consultation with the user States and international organisations 184 would be well advised so as to accommodate the general interests of user States. Furthermore, the environmental aspect which requires marine scientific research, knowledge and technology also has to be taken into consideration while designating archipelagic sea lanes. 185 Indonesia has recognised that ships and aircraft exercise their rights of archipelagic sea lanes passage through and over the Indonesian archipelago. In order to accommodate such passage, Indonesia enacted Act Number 6 of 1996 186

C.RIGHTS OF TRANSIT PASSAGE
The extension of the territorial sea to a maximum of 12 nautical miles from the baseline under the LOSC resulted in most of the straits used for international navigation previously subject to the high seas freedom of navigation to fall within the territorial seas of one or more coastal States. 189 This resulted in these straits coming under the sover- 185 eignty of coastal States 190 and consequently governed by the restrictive innocent passage rules of navigation. However, in straits used for international navigation, the maritime powers and user States wanted to secure their navigational rights which were not sufficiently safeguarded under the right of innocent passage. 191 Straits which are considered as narrow waterways for international navigation are often referred to as "choke points". In certain choke points, States bordering the choke points are permitted to restrict passage. 192 There are at least six straits used for international navigation which commonly referred to as "choke points" in Indonesian waters, namely the Malacca Strait, Singapore Strait, Sunda Strait, Lombok Strait, Makassar Strait, and Ombai-Wetar Straits. 193 These straits play a dominant role in global trade which makes them of global strategic importance. 194 In order to balance the competing interests of the international community in ensuring freedom of navigation and the flow of international commerce against those of the coastal States bordering these straits in protecting their sovereignty and national security, the LOSC fashioned the concept of transit passage as one of the fundamental navigational rights.

VI . CONCLUSION
This paper has provided the historical context of the development of Indonesia's archipelagic State doctrine and shown development of the archipelagic State doctrine of Indonesia is based on its geographical setting, economic interest and national security. The maritime policy of Indonesia can be traced back to the Dutch colonial period which stated that the territorial limit was three nautical miles and defined the way those baselines were drawn. After the independence of Indonesia, the colonial concept of maritime territory was not favoured by Indonesia. Later, the struggle for Indonesian independence affected the way Indonesia looked upon its own territory.
The archipelagic State doctrine is a new legal concept for ocean regimes around the world. The Indonesian archipelagic concept, as a maritime policy known Wawasan Nusantara, began in 1957 through what is recognized as the Djuanda Declaration. This Declaration stated that the islands of Indonesia and the seas between the islands formed one integral unit. This political declaration was transformed into a legal concept through Act Number 4 of 1960 on Indonesian Waters. It could be said that the Djuanda Declaration and Act Number 4 of 1960, influenced the adoption of the archipelagic State concept in the LOSC. The provisions of the LOSC and other rules of international law have guaranteed sovereignty over the Indonesian's internal water, archipelagic waters, and territorial sea. Nevertheless, while exercising its sovereignty, Indonesia has to consider provisions in the LOSC and in international law in order to balance and secure Indonesia's interests, the interests of its adjacent neighbouring States, as well as the interests of the international community.
Unlike sovereignty in the land territory, sovereignty of Indonesia in the maritime area has to be conformed and exercised under provisions in LOSC. It can be said that, there is no full sovereignty of Indonesia in the maritime area. It also shown that the interest of International community to Nusantara is navigation/communication and Indonesia has to accommodate the interest. Again, it might be different from the notion of Nusantara from first place, but Indonesia seems to take it. Finally, Indonesia needs to look again the Nusantara Concept for the sake of Indonesia interest within the nowadays-global maritime interest.