Author: Aristyo Darmawan, University of Indonesia
Over the last several years, Indonesia and Singapore have been dealing with different interpretations of Article 51 of the United Nations Convention on the Law of the Sea (UNCLOS) — specifically, whether Singapore has traditional rights to conduct military exercises in Indonesian archipelagic waters or not.
The Article stipulates that ‘an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters’. Singapore argues that traditional military exercise rights are included in the term ‘other legitimate activities’ and that Indonesia is obliged to grant Singapore the right to conduct them.
It also stipulates that ‘the terms and conditions for the exercise of such rights and activities, including nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them’. Here another issue arises.
Indonesia argues that there should be a ‘terms and conditions’ prerequisite to the obligation to respect ‘other legitimate activities’ because foreign military exercises in Indonesian waters could be dangerous. The term ‘other legitimate activities’ in Article 51 sounds ambiguous, but based on records of historical negotiations — captured by the Virginia UNCLOS commentaries — we know the final text of the Article was originally jointly proposed by Singapore and Indonesia.
Article 51 is the result of a long negotiation process between the two countries from 1974–1982. Singapore asked Indonesia to permit traditional military exercises in its waters, in exchange for it recognising Indonesia as an archipelagic state under UNCLOS. Indonesia rejected the proposal because it was a sensitive topic and would have likely been rejected by the Indonesian parliament, so it agreed to put ‘other legitimate activities’ in the text instead and negotiate on the issue of military exercise rights.
Indonesia and Singapore used to have a Defense Cooperation Agreement (DCA) that granted Singapore the right to conduct military exercises in specific areas of Indonesia’s archipelagic waters. But the DCA expired in 2003 and the Indonesian parliament failed to ratify a renegotiated version in 2007.
Afterwards, Indonesia argued that Singapore could not conduct military exercises in Indonesian archipelagic waters without a DCA. Singapore, on the other hand, continues to assert its own interpretation of Article 51 — that it has the right to military training as granted under the Article, even without the terms and conditions.
With diverging interpretations of Article 51, there is a possibility that Singapore could refer the issue to the International Tribunal on the Law of the Sea (ITLOS) or to an arbitral tribunal as regulated under Article 287 (3) of UNCLOS. Singapore and Indonesia are both members of UNCLOS and both are bound by the compulsory dispute settlement mechanisms. Under the Convention, ITLOS has jurisdiction over all disputes concerning the interpretation or application of the Convention.
Indonesia has not stopped sending diplomatic notes to Singapore protesting military exercises in the absence of a DCA or terms and conditions. In the future, there is a possibility that the Indonesian air force and navy could intercept Singaporean naval vessels or ships during these military exercises.
To avoid this, the two countries should seek to resolve their differences. By renegotiating the DCA and arriving at an agreement on interpreting the terms and conditions in Article 51 for Singapore to conduct its military activities, there is a good chance that Jakarta could get the Indonesian parliament to ratify it.
There is already some momentum towards a resolution. Both countries have agreed on a framework laying out the core principles and considerations concerning military training in accordance with UNCLOS. At a high-level leaders’ retreat in October 2019, Singaporean Prime Minister Lee Hsien Loong told Indonesian President Joko ‘Jokowi’ Widodo that he would like to start working on the issue in an ‘open and constructive manner’. Jokowi said Indonesia welcomed the framework and encouraged negotiations to be ‘speedily achieved with concrete results’.
The healthy state of bilateral relations between Singapore and Indonesia should help propel the negotiations further. In March 2021, a bilateral investment treaty between the two countries came into effect, highlighting their long-standing economic ties. Jokowi’s coalition also enjoys strong support in parliament, so it should be easier for the administration to ask for parliament’s approval and resolve this longstanding issue.
Aristyo Rizka Darmawan is a Lecturer and Senior Researcher at the Center for Sustainable Ocean Policy, Faculty of Law, University of Indonesia, and a Young Leader at the Pacific Forum.
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