Московский журнал международного права (Jan 2023)
Challenging the Freedom of the Ocean: The U.S. Freedom of Navigation Program in Indonesian Archipelagic Waters
Abstract
INTRODUCTION. In 2017, the US Department of Defense issued its Annual Freedom of Navigation Report. This is the first report released by the US government under the Trump administration. The report listed the geographic location of the US Freedom of Navigation (“FON”) Program all over the world. This document briefly describes an excessive maritime claims by coastal states’ activities in each case. Besides the South China Sea, the main US concern in Asia is Southeast Asia, which became one of the playing fields for the US FON Program, in particular the Java Sea in Indonesian archipelagic waters. MATERIALS AND METHODS. This article examines the US DoD’s Annual Freedom of Navigation Report for Fiscal Year 2016 and the provisions of Indonesian national legislation. Further, the author analyses the applicable rules of international law, such as the relevant provisions of the UN Convention on the Law of the Sea (“UNCLOS”). In this research, the author relies on the existing doctrine on the legal issues underlying the topic of the article. The methodological basis consists of general scientific and special research methods, including analysis, synthesis, and systematization, as well as formal-legal, formal-logical and critical-legal methods.RESEARCH RESULTS. This article argues that the US FON Program in Indonesia is not about the partial submission of archipelagic sea lane passage but rather the controversy created by Indonesian national legislation. In particular, when Indonesia’s government requires prenotification and prohibits aircraft to come across the route normally used for international navigation. Therefore, this paper seeks to evaluate what are the different views between Indonesia and the US in terms of the regulatory framework in the Java Sea and what could be done in addressing these issues.DISCUSSION AND CONCLUSIONS. The root of the disagreement between the US and Indonesia is in diverging interpretations of Article 53(1) of the UNCLOS; more specifically, whether this Article creates an obligation for archipelagic States to establish archipelagic sea lanes passages. In the author’s opinion, this disagreement should be resolved through bilateral negotiations aimed at elaborating a common understanding. Furthermore, the exercise of freedom of navigation should not infringe upon the coastal State’s rights, including its sovereignty.
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