Sea Control - Sea Control 400 - UNCLOS Article 51 at 40 with Dr. Arron Honniball and Aristyo Darmawan

Episode Date: December 29, 2022

Links1. "Article 51 of UNCLOS at 40: Military Training as Other Legitimate Activities?" by Arron Honniball and Aristyo Darmawan, Asia-Pacific Journal of Ocean Law and Policy, December 16, 2022. 

Hey folks, it's Jared. Episode 400. We've done 250 of these now since relaunch, and we're not slowing down. My guests today are Dr. Aaron Honnabel and Aristeo Damawan, and we're going to discuss their article on UNCLOS Article 51 and its impact on the Indonesia-Singapore relationship. This episode was edited and produced by Alexia Bualagi. At SimSec, we believe victory in the maritime domain starts with great ideas communicated compellingly. Write, fight, win. Please help us continue to fulfill our mission by donating and making SimSec your preferred nonprofit on Amazon Smile. I'd like to pause here to highlight our local chapters.

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My guests today are Dr. Aaron Honable and Ariseo Darmawan And we're discussing their paper, Article 51 of UNCLOS at 40 Military Training as Other Legitimate Activities So, gentlemen, welcome aboard Aaron, could you start by introducing yourself to listeners, please? Hi, yes. Thank you, Jav, for having us. It's a pleasure to be here. And we hope that your listeners enjoy reading or hearing about our article as much as we did writing it. As mentioned, my name is Aaron Honnable. Originally, I do come from the United Kingdom,

but I've predominantly been conducting law of the sea research in other states since leaving the UK about a decade ago to pursue a master's in public international law. So once hooked, I've kind of been focused on oceans law. Since then, in particular, the combating of IEU fishing, which was the main focus of my PhD manuscript. And today I'm based in the Max Planck Foundation in Heidelberg, Germany. Well, thanks again for coming aboard, Arisio. Could you tell the listeners a little bit about your background, please? All right. Thanks. Thank you. Thank you very much, Jared, for having us. So I'm Arisio Darmawan. I am currently a lecturer in international law at the Faculty of Law, Universitas Indonesia, where I am also co-director of the Center for

to stamp the ocean's policy. And now I'm also a visiting fellow with the Astro-Jeratnam School for International Studies at the Nanyang Technological University. So my research question is basically more on the maritime security and the law of the sea in Asia-Pacific regions, with particular the South China Sea dispute. Well, thank you very much. And as a reminder to the listeners, all opinions are our own and not reflective of any institution with which we might be otherwise associated. So Arisiel, I'll start with you for the first question. And the paper examines Article 51 through the lens of the Indonesia-Singapore relationship. So can you explain for listeners what that relationship has been like historically?

So basically, our article is dealing with how Indonesia and Singapore have a different perspective on the interpretation of Article 51. It's basically dealing with the issues of whether or not Singapore has the right of traditional military training area in Indonesia's archipelagic border. It started back with the absence of the defense cooperation agreement between Indonesia and Singapore, where it was initially regulated that Singapore had the right for conducting military training area in Indonesia's archipelagic border. And with the absence of the Defense Cooperations Agreement, which was initially agreed until 2003, Singapore argues still that even though with the absence of the Defense Cooperations Agreement, Singapore still can conduct a military training area in Indonesia's archipelagic border because the right is actually granted under the Article 51 of UNCLOS under the term other legitimate activities. So basically, our research is trying to interpret whether or not it's actually the meaning of other legitimate activities under Article 51. So then we go through the historical interpretations of UNCLOS. We go through the historical document. We saw some of the commentaries of the negotiating histories of Article 51 and other negotiating documents.

And then we, starting from that, I think we see and we try to interpret what's included in the term other legitimate activities. And we find out initially, quite interesting, that actually the Article 51 is actually drafted jointly by Indonesia and Singapore. Of course, I think if we go back to that time, Singapore is a very small country, very much concerned about Indonesia's claim of archipelagic waters, which basically take all of the water, more of the water in Southeast Asia or in the regions. So then Singapore want to assure that they still have the rights of the activities that previously been conducted in the area. So Singapore tried to push that Indonesia should respect and recognize the rights of traditional fishing rights, as well as the other legitimate activities, which included initially the military training area in the Indonesian archipelagic water. So that's what we found. And it's really, of course, influenced the bilateral relationships between Indonesia and Singapore up until now. I think, Dr. Aron, if you want to add something on that.

Yes, I'm not an international relations expert at all, so I cannot approach it from a political perspective. But I think if we just build on that also from an international law perspective, you can see that the relationship, at least at the bilateral level, has been consistently strong. even when there have been disagreements that have arose. So if you think about maritime delimitation, we see that the boundaries between Singapore and Indonesia have been largely settled through these sort of progressive extensions of the agreed boundary. And even after the 2007 DCA broke down, as Risto mentioned, we did shortly thereafter see in 2009 this extension of the territorial sea boundary, at least in the western side of the Strait of Singapore. So there's just now sort of these two tiny bits remaining at each end of the Strait of Singapore to the limit between the two states.

Or this might be a bit complicated by the need for a trilateral agreement there as well. Another example would be if you think about piracy and armed robbery at sea, you know, even though Indonesia is not a party to this recap agreement, for its own reasons, it does still participate and sort of cooperate through the information sharing center that is based in Singapore. So Aaron, what was in the 2022 expanded framework agreements and why were those agreements so important for Indonesia and Singapore? Yes, this sort of 2022 framework agreement is expanded because in the previous 2007, we're only talking about two agreements. In 2022, we now have sort of these four basic agreements. So the first one we have is the agreement on the realignment of the boundaries between the Jakarta flight information region and the Singapore flight information region. This is basically for the interest of Indonesia has long been requesting the idea that these are realigned because up until now,

Singapore has sort of exercised within its flight information region areas of Indonesia's archipelagic waters and territory around Riau and Natuna Islands. It's basically trying to realign that with its territorial boundaries as a sort of exercise of sovereignty over its territory and waters. And then for Singapore, within that framework, its interests are principally in the areas of sort of expanding its airport usage. So you know that Changi is still expanding. I think they've started groundworks on the next terminal. So within this, there will be a delegation agreement to Singapore concerning the provision of air navigation services around the Changi area, at least for 25 years, with the possibility for renewal. So that's the sort of first leg of this 2022 package. The second leg then is the Treaty for the Extradition of Fugitives, which in 2022 only has sort of minor amendments from the 2007 edition. And this was sort of added sort of late in the game in the interest of both states to try and successfully conclude the 2022 package.

And so we know that at least as late as 2020, this was not part of the package, but sort of was then re-added, try and get it over the finishing line. So, again, Indonesia has long sort of extended cooperation here in terms of extradition from Singapore for certain suspected corruption cases. And Singapore, in turn, then stresses the sort of rule of law approach and an idea that this was already a concession that was signalled back in 2007. So it's not that hard to reimagine it in the 2022 package. The third leg, then, is sort of what we focus on, which is sort of this joint statement between the defence ministers of both states, sort of reviving that 2007 defence cooperation agreement and implementing agreement. And so that's what we really focus on in terms of Article 51 and the question of military training activities. And then that final package is an exchange of letters between the two heads of states, which talks about bringing into force all these agreements simultaneously.

And so we're always talking about sort of package a deal, because by and large, each state since 2005 has been imagining this as a package deal. So you're going to give concessions in one area to get advances in another area. Obviously, all these topics don't logically fit within a single treaty. So you have sort of different agreements on each. But you want to make sure that all the benefits for your state come at the same time as all the benefits for the other state. And I think so far, correct me if I'm wrong, so far, I think Indonesia has ratified now the flight information region agreement. And we're just waiting for progress on the other two agreements for both states. So we've talked around and Arisco covered a little bit of this in his initial answer,

and I'm not sure he wants to respond here. But what is the actual substance of Article 51 of UNCLOS and then what was its genesis? Sorry, if I start a little bit about the genesis of Article 51, I think it is very much important article, which aims to for Singapore to recognize Indonesia as an archipelagic water. So what are basically regulated under the Article 51 of UNCLOS? So basically, the Article 51 is dealing with a couple of structure. So the first part of Article 51 is very much dealing with the obligations of an archipelagic state. First, I think the archipelagic state shall respect the existing agreement with other states.

So if there's already an existing agreement before the recognition of an archipelagic state, the agreement still should be respected by Indonesia. And the second obligation is to recognize the traditional fishing rights. So, for example, we have an agreement with Malaysia in respect to traditional fishing rights. So if there's a traditional fisherman of Malaysians, which already taken fish in that particular waters, and then after the recognition of the archipelagic state regimes, the particular waters become the Indonesian archipelagic waters, so the traditional fishing rights still should be respected. Of course, then the implementations, it's by using a separate agreement as well. And the third is the other legitimate activities of the immediately adjacent neighbor states. So it's really, there's a big questions here, and what activities are considered as a legitimate under article 51, right? So then that's the particular thing that we discussed earlier. So the legitimate activity. So the first part, I think the first sections of article 51 is dealing with the obligations of archipelagic states. And then the second part, I think it's dealing with determined conditions on how this obligation should be applied.

And it's stated that for the exercise such rights and activities during the nature, the extent and the areas to which they apply shall at the request of any of the state's concern be regulated by the bilateral agreements. So then the debates come here on whether or not the bilateral agreement is really a prerequisite for the obligations to be implemented. So then we're also dealing with such several practices. I think if we see the practice of traditional fishing rights, for example, between Indonesia and Malaysia, they have the special bilateral agreements that are dealing with traditional fishing rights. But based on our research and going through some of the documents, is actually some would argue that the bilateral agreement is not a mandatory. While, of course, if it's some other party netted the agreements,

they can negotiate a particular treaty on that specifically. So basically, the Article 51 is dealing with the obligations for an archipelagic state to be recognized as an archipelagic state, and also what other prerequisites or terms and conditions for the obligations can be applied. And what's the significance of the phrase other legitimate activities? What are the different ways that countries could interpret Article 51? When we're interpreting this, I think it's worth emphasizing that, as previously mentioned, this was largely negotiated between the Southeast Asian states themselves. So Malaysia, Singapore, Indonesia and Thailand.

That's why we place such great emphasis on this practice in terms of subsequent practice on the interpretation application of this article. When we look specifically at other legitimate activities, you know, this was principally designed between Indonesia and Singapore. And it's sort of highly significant phrase because it's sort of purposely ambiguous wording, which sort of allowed this consensus to build. And then we eventually have an agreement on the entire archipelagic sea regime. If there had not been agreement on the archipelagic sea regime, I don't know if the state we're talking about now would have been party to UNCLOS or if UNCLOS would have gotten over the finishing line. So in that sense, I think it's quite important that we have this sort of agreement on Article 51. And yes, so that ambiguity allows this sort of differences of interpretation to to continue. So you might interpret it restrictively in terms of then linking it back to those traditional fishing rights and say, well, we're talking about traditional legitimate activities, which some authors also suggest.

You might also liberally interpret it sort of to accommodate future or evolving legitimate interests. the wording of the article might suggest and which the practice kind of suggests as well and then whether it includes military training or not obviously the Singaporean delegation felt it was sufficiently captured within this phrase as a matter of the Singapore delegation thought it was sufficiently captured within the phrase of other legitimate activities when they talk about military training while the Indonesians also feel that sort of this continuous ambiguity ambiguity allows us to continue the discussion on terms of the exact terms and conditions that will be placed on that to continue reaffirming and protecting the sovereignty of the archipelagic

state particularly also then when it comes to joint activity so i'd like to go off script for a second here and ask you both a little bit about why this is significant for singapore and indonesia where would the singaporean navy be limited to operating if not for article 51 i would i would imagine like within like six miles of their own coast because you can't exercise in the Singapore Strait so and then how does this work and follow-up question to that would be how does this then work in practice does Singapore have to notify the Indonesians when they want to go out and use a specific area or how does that how does that work so basically yeah Singapore would be what we classify as a geographically disadvantaged state so obviously it's very circumscribed

geographically it does have a claim to an EEZ but we don't know exactly where that would be In terms of nearby areas that it can conduct military training activities, that was the main emphasis of why it wanted to agree Article 51, because prior to UNCLOS, it did conduct activities in these waters, which were at that time high seas waters. The archipelagic sea regime didn't exist within international law per se, and so it wanted to continue having a nearby area. Obviously, it has defence cooperation agreements with other states. I think Australia is one example where it can conduct training activities there. But obviously, you might want to do things nearby. You might not want to travel every single time. So that was its main interest. The procedural issues are detailed in the agreements. So the 1995 agreement, which did come into force, is the one that we've seen practice for.

It was in operation for about 10 years. And then the 2007 agreement, which has been revived, then also has detailed procedures. procedures, also in terms of future cooperation. So if both parties want to continue deepening their cooperation, they can do through this sort of oversight committee. Christiaan, perhaps you have more? Yeah, if I might add a little bit, I think the term under legitimate activities under Article 51 is very much important for Singapore. I think, as we're all aware, that Singapore has a very significant technology, navy capacity and etc. So Singapore really needs a place to doing an exercise is basically.

And as what Aaron said, Singapore is considered as a geographically disadvantaged state, I think really need to play. So it's a very existential issue. And if you go back to the last several years, I think even since the DCA,

the Defense Corporations Agreement was expired, I think Singapore will keep doing an exercise in the Indonesian water. And if you go through the headline news, there has been a lot of protests from the Indonesian Navy.

There has been a lot of protests by the Indonesian Army that Singapore stopped exercising the military exercise in Indonesia's archipelagic quarters because you don't have the rights because of the pending of the agreement. So it's really important in a sense that if it's not there,

then when Singapore keep and keep and practicing the military training activities in Indonesia's archipelagic quarters, and it may also create a possible frictions between two countries when one country argue that they have the rights and Indonesia keep protesting. So I think it is very much important

for the bilateral relationships between Indonesia and Singapore. So that's why I think how it is very important to be interpreted clearly and how the agreement, I think, should be put into realizations. Was there any official diplomatic activity as a result of that from the Indonesian side? Or was it mostly just people complaining to reporters and that being published? Yeah, I think there has been a series of diplomatic notes from the Indonesian Minister of Defense as well as the Singapore Minister of Defense. When I did a research, I read even like the diplomatic correspondence where the Singapore Minister of Defense very much urged Indonesia to put it into clear. So there has been a diplomatic notes, I think not only from the military, but also from not only from public protests, but also diplomatic, a formal diplomatic exchange.

Even I heard that Singapore might challenge Indonesia to the international tribunals in regards to the interpretation of Article 51. So there has been a series and a series of diplomatic communications between the two countries. It's not only involved in public sentiment or in the media. And then aside from Singapore and Indonesia, where else do you see a lot of Article 51 activity? I don't think there exists anywhere else in the world other than the Indonesia and Singapore, because, you know, the articles on archipelagic waters was basically drafted for Indonesia. Even Indonesia is the only country that have archipelagic sea lanes right now. So it's very much designated for Indonesia. And in particular, if you go through the negotiating history of Article 51, it's jointly drafted by Indonesia and Singapore.

When we were having a conference with Aaron, some colleagues at the APOILA conference are asking that if we actually let Singapore interpret or consider they have legitimate activities under Article 51, then other countries may also claim that they have their legitimate activities. But I don't think that's quite a relevant argument because, of course, to know what really in the Article 51, we have to go through the negotiating history. And if you go through the negotiating histories, of course, not all countries will have the legitimate claims in saying that they have the right to conduct traditional military training exercises in international archipelagic order. So it's basically very much related to the histories. And I think no other countries, I think, can claim later on that they have the traditional mini-training in Indonesia's archipelagic waters. Aaron, if you might want to add something? Yeah, well, just that, you know, if there is archipelagic states in other regions and people have expertise on that, we'd be most interested to hear if there is other practices.

We're not personally aware of them. But yeah, it's just also then worth noting the other conditions that are attached in Article 51. So the other key conditions are that it is a right of an immediately adjacent neighboring state. So this is basically interpreted as sharing a boundary, a territorial or maritime boundary area, and that is limited to certain areas of the archipelagic waters. So it's not like you get this right and then it is everywhere. It's within a specific area sort of agreed between the parties, either on the basis of precedent or on the basis of the needs of the states. So here we see that the certain area between Singapore and Indonesia has moved to accommodate the interests of Singapore and Indonesia in terms of maritime navigation or fisheries, where continued activities in the original area would have been detrimental to both states. And so they sort of agreed to sort of shift it a bit. So, yeah, those also point against other states sort of claiming this right within at least Indonesian waters.

But that's not to say that other legitimate interests might arise in the future or other immediately adjacent states might, along with the archipelagic state, consider the application of Article 51. It's just to date, we don't really see that. Maybe Article 51 can also be interpreted by Indonesia and Malaysia in terms of not the legitimate activities, but the traditional fishing rights. So Indonesia and Malaysia, indeed, we have a bilateral agreement, we have a bilateral treaties on the traditional fishing rights, but it's not the other legitimate activities part. But more on like in the fishery sectors, which we have then implementing agreement about its release on how the traditional fishing rights should be respected, but not the other legitimate activities. Well, I'm sorry, that's all that we have time for today. I'd like to thank my guests, Dr. Aaron Honeyball and Arisio Darmawan. Arisio, where can we find you online and what are you working on next? Well, you can find me on LinkedIn, Arisio Darmawan or Twitter, A-R-A-S-T-O-O. I'm currently also a visiting research fellow with the RSIS.

So I'm going to be having a research project on Indonesia and maritime security with the RSIS in the following month. Thanks again. And Aaron, where can we find you and what's your next project? So you can find me at the website of the Max Planck Foundation, mpfpr.de. Perhaps not as famous as the Max Planck Institute, but we do focus on sort of applied research. So currently, we're very fortunate to be working with the ASEAN Secretariat and ASEAN member states under this cooperative framework agreement concerning the law of the sea. So hopefully we'll have our final workshop at the end of November addressing maritime security, which, yeah, I'm very excited to be back at my roots where sort of my master thesis first addressed this in terms of the definition of piracy. And yeah, you can, of course, catch me also on Twitter. And yeah, otherwise, I'm always happy to have a chat. So reach out by email, Twitter

Find me at a conference coffee break Or email us at themaoriambus.net Where we try and share news on state practice Or conferences and events that might be of interest To the Lord of the Sea community Well thank you both again for joining us To listeners, thanks for tuning in We'll see you next time

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