Sea Control - Sea Control 434 - Can Indonesia Stop the Transit of AUKUS Subs with Dita Liliansa

Episode Date: June 8, 2023

Links1. "Could Indonesia legally stop transit by nuclear-powered AUKUS subs? by Dita Liliansa, The Interpreter, March 21, 2023.2. "The Strategic Littoral Geography of Southeast Asia," by Pete McPhail, Arthur Speyer, Bret Rodgers, Steve Ostrosky, Jesse Burns, and Dan Marquis, CIMSEC, June 4, 2020.3. Dita Liliansa's Twitter Feed.

Hello, and welcome to the Sea Control Podcast. I'm Nathan Miller. Today, Jared speaks with Dita Leliansa, an ocean law and policy researcher at the National University of Singapore's Center for International Law. They discuss her article for The Interpreter, Could Indonesia Legally Stop Transit by Nuclear-Powered AUKUS Subs? Brendan Costello edited and produced this episode. SimSec is looking for a volunteer to join our technical team and support our web operations. We're looking for someone with a background in WordPress implementation and support, as well as knowledge in web hosting and networking.

Some knowledge of identity management and security operations is also helpful. Please reach out to content at simsec.org to share your background and discuss. I would like to pause here to highlight our local chapters. Whether you are in South Korea, Egypt, Singapore, France, New York, India, or the Caribbean, chances are there's a SimSec local chapter near you. You can find a full listing of local chapters and contact information on our website, simsec.org. So if you are interested, please reach out. Finally, I want to take the opportunity to recommend our partners in the SimSec podcast network, The Bilge Pumps.

You can find Alex, Jamie, Drack, and a pile of Iron Brew bottles wherever you download your podcasts. And with that, Kimber's Men. You're listening to Sea Control, hosted by the Center for International Maritime Safety. Hello, Hashemates, and welcome back to Board Seat Control. My guest today is Dita Liliansa, and we'll be discussing her article for The Interpreter, a Lowy Institute publication entitled, Could Indonesia Legally Stop Transit by Nuclear-Powered AUKUS Subs? So, Dita, welcome. Could you start by telling the audience a little bit more about yourself, please? Thanks, Jared. So, hi, everyone.

My name is Dita. So I'm currently a researcher at the Center for International Law at the National University of Singapore. So I'm a lawyer by training, but I have an interest in maritime security. And this topic is very close to my heart because I'm originally from Indonesia. Well, thank you again for joining us. 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 Dita, I'll start with the obvious. Why is this even a question? Right. So thanks, Jared, for the question. So my article is pretty much reacting to statements by some of the Indonesian government officials in the wake of the AUKUS announcement, suggesting that Indonesia should consider prohibiting the passage of foreign submarines through its archipelagic waters if they are engaged in activities related to war or preparation of war or non-peaceful activities. So when I first read the statements, I was like, wait a minute, on what grounds? And so as a lawyer by training, my brain always like automatically asked for the legality of an activity.

You know, it raises a very interesting question on, you know, on that very focus where my article is, you know, like could Indonesia actually stop transit by nuclear power subs? I didn't write this in the read ahead. I'm going to ask it anyway. If you can't answer it, feel free to pass on it. Can you explain a little bit more about Indonesia's geography and why this is such an important question for them in particular, because it's just where the country sits between Australia and China? So really, Indonesia is in the middle of this, I think, competition, I would say. If you look at the map, Indonesia is pretty large. If you see, you know, like it connects the Indian Ocean and the Pacific Ocean. And so whether you're coming from the Indian Ocean, going all the way to the South China Sea, you have to pass through certain choke points that are located in Indonesia. You know, either it's the one in the Malacca Strait or in the Sunda Strait or the Lombok Strait.

And I think in the context of submarines, as I have been informed, I think among those choke points, I think Lombok Strait is the most ideal location for submarines because of the depth. So it's much deeper. I think it's more than 25 meters. I'm not sure in terms of the other straits, but I've been informed that's the ideal location where submarines can submerge in their normal mode, which means underwater and all the way to the Makassar Strait, which is between the Borneo and the Sulawesi. So really, there are several options if, you know, like, let's say Australian subs want to traverse from its base in Perth or, you know, in Australia, all the way to China, then it must go through Indonesian waters. that's why you know the questions of you know passage through indonesian waters becomes very crucial in you know the whole august discussion because without being able to go through indonesian waters i don't think uh i think it will be too far well they could always go all the way from you know papua new genie or you know all the way it's kind of like uh escaping Indonesia, but that would be too far. Effectively, Indonesia is the shortest route if, you know,

AUKUS subs want to go from Australia to China or South China Sea. So for the listeners, we'll have a link in the show notes here. There's a, Simsek did a choke points and littorals topic week a couple of years ago. And one of the submissions for that was a very detailed map of the Indo-Pacific and specifically all the straits that you just mentioned, and what exactly will and will not fit in which mode through those straits. But what rights do ships and warships specifically have to transit territorial waters? Right. So I think to answer this question, I just have to give some brief context. So in this regards, when we're talking about archipelagic waters and the rights of ships

and warships, we pretty much talk about the Law of the Sea Convention, which was concluded in 1982, entered into force in 1994 now it has 168 parties including indonesia so some who are not parties of the convention like the united states have considered many of its provisions as customary international law meaning it is also binding on non-parties so one key aspect of UNCLOS is its zonal approach so it divides the ocean into several maritime zones with different rights and obligations and one of these zones which is critical to our discussion today is the archipelagic waters you know based on this uh archipelagic waters there are only several states you know in the world that claim archipelagic state status including indonesia you know with

with that status indonesia is able to draw archipelagic waters and based on the law of the Sea Convention, all ships, including submarines and warships, have guaranteed rights to navigate through archipelagic waters under the right of innocent passage or the right of archipelagic sealant passage. So, you know, how are they different? So the right of archipelagic sealant passage grants all ships the right to navigate continuously and expeditiously in their normal mode through the archipelagic waters and the adjacent territorial sea and so the term normal mode here for submarine especially means that they may navigate submerged since that's their normal mode of navigation but this right cannot be impeded or suspended by the archipelagic state

for any reason so whereas the other right the archipelagic you know the innocent passage it's quite different in a way that you know it's more limited but it applies throughout archipelagic waters and through the territorial sea so unlike the archipelagic sealant passage that we just discussed submarines exercising this right must navigate on the surface so submarines must navigate on the surface and show their flag and comply with you know other rules on passage, such as refraining from engaging in any activity that is prejudicial to the peace, good order, or security of the coastal state. And another point that is relevant to our discussion on AUKUS is that, unlike the archipelagic sealant passage, if ships navigate through the

innocent passage, this right may be temporarily suspended in specified areas of the archipelagic waters and territorial sea, provided that such suspension is essential for the protection of the security of the coastal state. Of course, there is a due notice requirement that must be rendered by the coastal state before imposing such closure in its waters. What theoretical restrictions could Indonesia impose? In archipelagic waters where the right of archipelagic sea lane passage applies, of course, Indonesia cannot impose any restriction. So even let's say we're talking, you know, in the context of wartime, these lanes must be kept open. So archipelagic states have an obligation to respect this right of foreign submarines. But when we're

talking about, you know, the innocent passage right in the archipelagic waters, since temporary suspension can take place if it's essential for the protection of coastal state security indonesia you know can give due notice to the public but then it has to specify you know like provide navigation warnings to mariners specifying the coordinates at which the temporary closure would be held and for how long but again you know like this i think the last time indonesia had this closure was in 1988 but even during that time it was there was a bit of a debate among you know like scholars whether it's allowed you know because some of the closures also took place in the ceilings which i think if we read the law of the sea convention correctly such closures should

not have taken place if it's you know in the in the archipelagic waters where innocent passage applies then of course you know indonesia has the rights to close it temporarily but i think the key word here is temporarily so it's not like permanent and it's also non-discriminatory so you know it has to apply to all states so like if you close the ceiling just for certain states then that would raise the question of why you know like you treat certain states differently than others. Does UNCLOS address changes specific to wartime? And if so, what are they? No, unfortunately not. UNCLOS, as far as I know, does not explicitly address changes specific to wartime, which is why I think there have been some debates as to whether UNCLOS applies during

an international armed conflict or not. So views among scholars vary from UNCLOS not applying at to UNCLOS remaining applicable. Based on my research, the law of naval warfare supersedes UNCLOS for belligerent parties, that's for sure. But then UNCLOS continues to govern the conduct between neutral and belligerents,

and of course, among neutrals. So I would agree that maritime rights and duties that states enjoy in peacetime continue during an armed conflict, particularly the rules on passage rights of foreign ships through archipelagic waters. But minor exceptions may apply, but not for the passage rights. So I'll just give you one example of how that minor exception is. The exercise of the belligerent's right of visit, search, and capture, for instance, over neutral merchant ships, that provides an exception to exclusive flag state jurisdiction, which is well protected in the Law of the Sea Convention during peacetime. But, you know, like during wartime when, you know, there is the need to kind of like balance the need of belligerents to conduct effective warfare and also the interest of the neutrals to continue peaceful and profitable trade through commercial shipping, then, you know, this rights is pretty much how customary international law and this age or, you know, develop in the context of wartime.

At the moment, law of naval warfare is primarily based on customs, but you mentioned San Remo manual. It's an unofficial statement, but it has been widely accepted as a reflection of customary international law. But even let's say, you know, like if we say that, you know, OK, let's say UNCLOS does not apply. And then we specifically refer to San Remo only, like theoretically. So even during, you know, under San Remo Manual, passage rights applicable to archipelagic waters in peacetime will continue to apply during an armed conflict. So, yes, you know, a neutral archipelagic state may condition, restrict, prohibit the entrance or passage through its neutral waters by belligerent ships on a non-discriminatory basis, except for passage through archipelagic sealings, you know, whether formally designated or not. I think I haven't discussed it because why, you know, I talk about whether it's formally designated or not is because in the Indonesian context, Indonesian designation of archipelagic sealant is considered partial because it only covers the north-south lanes, the three north-south lanes, but it hasn't covered the east-west routes. So that means other states may exercise the rights of archipelagic sealant passage, not only through this designated links to the north-south, but theoretically through the east-west route.

But I think in the context of submarines, then maybe the next question is, is the east-west route, you know, like ideal for submarines? Is it deep enough for submarines to traverse? But let's say if it is, then, you know, this option to traverse under archipelagic sealant passage through the east-west route remains open. Then one just final question. So regardless of what Indonesia wants to do, and we could say for the sake of argument for this question, let's say it wants to prevent transit by belligerence, any sides participating in a conflict, is it capable of enforcing that against anyone? well i think it's an excellent question because i'm a lawyer and not a defense expert and certainly not a naval warfare expert but i think other states would want to continue their passage through the choke points in indonesian waters especially when you know the law clearly supports such continuation of passage so they have a strong case to make you know to continue the passage because the law also prohibits the closure of such sea lanes even during wartime but then you know you're right to ask the question you know how would indonesia enforce it is it capable so like

another question would be if indonesia does that would the closure only apply to certain ships you know to these occas subs or to other ships as well and what does it mean to indonesia status during you know if because you're mentioning about belligerence so i'm assuming that we're talking specifically in the context of wartime so what does it mean if you know there is a wartime and indonesia uh chooses to close these ceilings uh what does it mean to indonesia status is it still a neutral state or is it also a belligerent so i think i will leave it there for another discussion and maybe future discussion. Yeah, I have to believe it's almost impossible to close close, particularly using naval mines, only because you stop the trade that passes through

there. Just forget all the warship stuff. You stop the sheer quantity of trade that passes through all those states. The international economy is going to grind to a halt in the way that we only saw with the ever given. So at which point everyone involved is going to be very upset about it both sides of the belligerence would have intense interest in that as well but to ask any questions um i'm sorry that's all that we have time for a day i do want to thank my guest dita lilianza dita where can we find you online and what are you working on next so you can find me online on linkedin or twitter so my twitter handler is at d l i l i a n s a so pretty much the first letter of my first name and then my last name. And now I'm actually working on

another article on wartime, but really focus on the threats to commercial shipping during an international armed conflict. So really, Jared, your last point about, you know, all the responses from, you know, the commercial trade or the non-belligerent side is very much relevant to my upcoming article. Please look forward to it because I think it's such an interesting paper and such an interesting topic. I am looking forward to it. And we definitely want to bring you back once that is published. So we will be in touch. But thank you again for joining us today. To the listeners, thanks for tuning in. We'll see you next time. © transcript Emily Beynon

Put in the alley. Put in the alley. Put in the alley. Put it out. Put it out.