Tipe & Size (, 58K) edisi 2g pdf
EEZ and Indonesian Perspective
By:
Prof. Dr. Hasjim Djalal, MA
History of EEZ (Pre-UNCLOS 1982)
The general rules of the ocean in the 19 th century were the freedom of the sea. The
right of the coastal states to control the seas around them where limited to 3 nautical
miles from the coast lines or baselines. This was very favorable to the maritime
powers who have the means to control the ocean space and to take advantage of most
of its resources, particularly fisheries.
By the beginning of the 20th century, more states have claimed wider territorial seas,
ranging from 6 miles to 12 miles and even later to 200 miles from their coast
(particularly the ECP -Ecuador, Chile, Peru- countries). Their main purpose was to
take advantage of the resources of the seas near to them.
At the same time, more states were discovering and beginning to exploit oil and
natural gas on the continental shelf. In 1945, the US led the claims to continental
shelf, particularly by the Truman Declaration that claimed all the resources of the
continental shelf around the US land territory belong to the United States. The “rush”
to claim the resources of the continental shelf began to intensify. At the same time,
security reasons also played roles. In 1950 the US began to declare its Air Defense
Identification Zone (ADIZ) up to 300 miles beyond its coastlines. Again this was later
followed by other states, such as Canada, I 1951 by declaring ADIZ up to 100 miles
from its coasts, and later by others.
The continental shelf regime was a subject for regulation by the 1958 Geneva
Convention on the continental shelf which limited the coastal states sovereign rights
over the shelf down to 200 meter isobaths or to where the exploitation of the
resources is still possible.
Prelude to UNCLOS 1982
After the failure of the first UN Conference (1958) and the second UN Conference (1960)
to reach agreement of the limit of the territorial seas, more and more new independent
states appeared in Africa who, like many others, thought that the existing law of the sea
rules had been too much in favor of the Western industrialized advance countries. Marine
environmental problems began to appear, particularly after the Torrey Canyon accident in
1967 that caused massive environmental disaster and pollution in French coastal areas. At
the same time, fisheries resources of the sea began to decline and conflicts over fisheries
began to appear between states (the so-called Cod wars). Discoveries of new sea bed
1
resources beyond the normal continental shelf, particularly on the deep seabed area.
Increasing rivalries between the West and the East Blocs during the cold war that
intensified the development of maritime military and defense strategic requirements.
UNCLOS 1982.
During the preparatory works for the 3rd UN Law of the Sea Conference (1967-1973) and
the Conference itself (1973-1982), several groups appeared in the Conference. The first is
The Territorialist, particularly in Latin America, which claimed 200 mile territorial sea.
Second, The Archipelagist (Indonesia and others) who claimed territorial sovereignty
over the archipelagic waters and their resources. Third, The Marginist, who claimed
sovereign rights over all the resources over and in the seabed area and its subsoil all the
way to the “outer edge of the continental margin.” Fourth, The Economist (Africa) who
claimed all the economic resources of the sea up to 200 nautical miles from their
coastlines. Fifth, The land-locked and geographically disadvantage states (LLGDS), led
by Singapore and Nepal, who claimed their rights to participate in the exploration and
exploitation of the seas. Last, there are other groups that deals with the maritime space
like the “straits countries” and “maritime powers”, the coastal nations and the distance
water fishing nations (DFWN), and others.
The Legal Regime of EEZ
The EEZ is an area of the sea “beyond and adjacent to the territorial sea” (Article 54).
In the EEZ (Art 56), a coastal states has:
a. “Sovereign rights for the purpose of exploring, and exploiting, conserving,
and managing the natural resources…………. and with regard to other
activities for the economic exploitation and exploration of the zone……. “
b. “Jurisdiction ……………… with regard to :
i. The establishment and use of artificial islands, installations and
structures;
ii. Marine scientific research;
iii. The protection and preservation of the marine environment.”
c. Other rights and duties, such as “due regard” to the rights and duties of
other states, and shall act in a manner compatible with the provisions
The regime for the seabed area and its subsoil falls under the regime of continental shelf
(Article 56 (3)).
The breadth of the EEZ shall not extend beyond 200 nautical miles from the baselines
from which the breadth of territorial sea is measure (Article 57). In the EEZ, other states
have the freedoms of navigation and overflight, and laying of submarine cable and
pipelines (Article 58(1)).
2
There are specific rules with regard to the construction of artificial islands, installations
and structures in the EEZ, including its safety zones (500 meter around them) and the
removal of the abandon or disused installations. Those artificial islands, installations and
structures, do not posses the status of the islands and the have no territorial sea of their
own (Article 60 (8)).
In the EEZ, a coastal state has the rights (1) to determine the maximum sustainable yield
(MSY), (2) to determine the total allowable catch (TAC), (3) its capacity to harvest (CH),
and (4) to give other states access to the surplus of the allowable catch by bilateral
agreement of arrangement. Coastal states also have obligation to agree on management
and conservation of the fisheries that occurred within the EEZ of more coastal countries
(“straddling-stocks”) or that migrate from the EEZ to the high seas beyond (“highly
migratory species”). Such cooperation could be developed through bilateral, regional or
international arrangements of agreements.
The EEZ regime also dealt with “anadromous stocks” (species that were born in coastal
states waters and mature at sea), and the catadromous species (species that originated on
the high seas and mature in the EEZ, as well as with the “sedentary species” that belongs
to the regimes of continental shelf. The EEZ regime also dealt with the right of the
LLGDS to participate in the exploitation of the surplus living resources of the EEZ based
on bilateral, sub-regional, or regional agreements.
The EEZ articles also dealt with the problems of enforcement as well as with the
delimitation issues between states. It also obliged the coastal states to show the outer
limits of their EEZ on charge of a scale or scales adequate for ascertaining their position
and shall give due publicity to such charts or list of geographical coordinates and shall
deposit them with the Secretary General of the UN (Article 75 (2)). The regimes of the
EEZ as indicated above have been ratified by 156 countries as of 16 July 2008.
What is not well regulated was whether military activities such as “military exercises”
and “intelligence gathering” activities could be carried out by a state in the EEZ of other
countries. In this context it should be noticed that certain regime of the high seas (Article
88-115) applies to the EEZ, including the uses of the sea for peaceful purposes, the
principle of “due regard” for the interest of others, the immunity of ships, as well as the
rules on piracy, hot pursuit, and others.
Indonesian Practice
Indonesia issued Government Declaration on EEZ on 21 March 1980 following the final
negotiation on the EEZ. The Declaration stated that Indonesian EEZ of 200 nautical miles
is measured from the baselines of its archipelagic waters. The Declaration confirmed to
the subsequent text of UNCLOS. The Declaration was later enacted into Law No. 5/1983
dated 18 October 1983. The Law deals with:
a. Rules on Surplus and the issues of MSY, TAC, and capacity to harvest, as
well as on the delimitation.
b. It also dealt with rules on lialibility and compensation for damage,
including damage to marine environment in the EEZ.
3
c. It charges the Indonesian Navy for the responsibility of law enforcement
in the EEZ (Article 14 (1)).
d. Illegal fishing in the EEZ as well as penalty for violation of the rules,
including fines and confiscation of the catch and the offending ships.
e. The Law No. 5 has further been regulated by Government Regulation No.
15/1984, dated 29 June 1984, which regulates further the management of
the living resources in the EEZ, including the possibility and rules of joint
venture and other cooperation with foreigners, the prohibition of the use of
explosive, cyanide, and other dangerous fishing activities, fishing permit,
and the utilization of the “surplus” fisheries resources based on bilateral
agreement.
f. Various Ministerial Regulations on fishing permits have later been issued
for fishing in the Indonesian EEZ
Unsettled Issues
It should be noted that EEZ is not the “territory” of a coastal states but the “zone” of the
coastal states, mainly for economic purposes. Neither the EEZ is part of the high seas,
because the regime of high seas applies to all parts of the seas “that are not included in
the EEZ, in the territorial sea, or in the archipelagic waters of an archipelagic states”
(Article 86). Therefore, not all military and intelligence gathering activities on the high
seas could be exercised in the EEZ of other countries, although the freedom of navigation
and overflight is recognized in and above the EEZ.
These uncertainties with regard to the regime of military exercises and intelligence
gathering activities of other countries in the EEZ have been the causes of the various
incidents and armed conflicts. In view of this, a group of experts on maritime issues have
worked between 2002-2005 to attempt to formulate certain guidelines and have submitted
them to the international communities for consideration.
4
By:
Prof. Dr. Hasjim Djalal, MA
History of EEZ (Pre-UNCLOS 1982)
The general rules of the ocean in the 19 th century were the freedom of the sea. The
right of the coastal states to control the seas around them where limited to 3 nautical
miles from the coast lines or baselines. This was very favorable to the maritime
powers who have the means to control the ocean space and to take advantage of most
of its resources, particularly fisheries.
By the beginning of the 20th century, more states have claimed wider territorial seas,
ranging from 6 miles to 12 miles and even later to 200 miles from their coast
(particularly the ECP -Ecuador, Chile, Peru- countries). Their main purpose was to
take advantage of the resources of the seas near to them.
At the same time, more states were discovering and beginning to exploit oil and
natural gas on the continental shelf. In 1945, the US led the claims to continental
shelf, particularly by the Truman Declaration that claimed all the resources of the
continental shelf around the US land territory belong to the United States. The “rush”
to claim the resources of the continental shelf began to intensify. At the same time,
security reasons also played roles. In 1950 the US began to declare its Air Defense
Identification Zone (ADIZ) up to 300 miles beyond its coastlines. Again this was later
followed by other states, such as Canada, I 1951 by declaring ADIZ up to 100 miles
from its coasts, and later by others.
The continental shelf regime was a subject for regulation by the 1958 Geneva
Convention on the continental shelf which limited the coastal states sovereign rights
over the shelf down to 200 meter isobaths or to where the exploitation of the
resources is still possible.
Prelude to UNCLOS 1982
After the failure of the first UN Conference (1958) and the second UN Conference (1960)
to reach agreement of the limit of the territorial seas, more and more new independent
states appeared in Africa who, like many others, thought that the existing law of the sea
rules had been too much in favor of the Western industrialized advance countries. Marine
environmental problems began to appear, particularly after the Torrey Canyon accident in
1967 that caused massive environmental disaster and pollution in French coastal areas. At
the same time, fisheries resources of the sea began to decline and conflicts over fisheries
began to appear between states (the so-called Cod wars). Discoveries of new sea bed
1
resources beyond the normal continental shelf, particularly on the deep seabed area.
Increasing rivalries between the West and the East Blocs during the cold war that
intensified the development of maritime military and defense strategic requirements.
UNCLOS 1982.
During the preparatory works for the 3rd UN Law of the Sea Conference (1967-1973) and
the Conference itself (1973-1982), several groups appeared in the Conference. The first is
The Territorialist, particularly in Latin America, which claimed 200 mile territorial sea.
Second, The Archipelagist (Indonesia and others) who claimed territorial sovereignty
over the archipelagic waters and their resources. Third, The Marginist, who claimed
sovereign rights over all the resources over and in the seabed area and its subsoil all the
way to the “outer edge of the continental margin.” Fourth, The Economist (Africa) who
claimed all the economic resources of the sea up to 200 nautical miles from their
coastlines. Fifth, The land-locked and geographically disadvantage states (LLGDS), led
by Singapore and Nepal, who claimed their rights to participate in the exploration and
exploitation of the seas. Last, there are other groups that deals with the maritime space
like the “straits countries” and “maritime powers”, the coastal nations and the distance
water fishing nations (DFWN), and others.
The Legal Regime of EEZ
The EEZ is an area of the sea “beyond and adjacent to the territorial sea” (Article 54).
In the EEZ (Art 56), a coastal states has:
a. “Sovereign rights for the purpose of exploring, and exploiting, conserving,
and managing the natural resources…………. and with regard to other
activities for the economic exploitation and exploration of the zone……. “
b. “Jurisdiction ……………… with regard to :
i. The establishment and use of artificial islands, installations and
structures;
ii. Marine scientific research;
iii. The protection and preservation of the marine environment.”
c. Other rights and duties, such as “due regard” to the rights and duties of
other states, and shall act in a manner compatible with the provisions
The regime for the seabed area and its subsoil falls under the regime of continental shelf
(Article 56 (3)).
The breadth of the EEZ shall not extend beyond 200 nautical miles from the baselines
from which the breadth of territorial sea is measure (Article 57). In the EEZ, other states
have the freedoms of navigation and overflight, and laying of submarine cable and
pipelines (Article 58(1)).
2
There are specific rules with regard to the construction of artificial islands, installations
and structures in the EEZ, including its safety zones (500 meter around them) and the
removal of the abandon or disused installations. Those artificial islands, installations and
structures, do not posses the status of the islands and the have no territorial sea of their
own (Article 60 (8)).
In the EEZ, a coastal state has the rights (1) to determine the maximum sustainable yield
(MSY), (2) to determine the total allowable catch (TAC), (3) its capacity to harvest (CH),
and (4) to give other states access to the surplus of the allowable catch by bilateral
agreement of arrangement. Coastal states also have obligation to agree on management
and conservation of the fisheries that occurred within the EEZ of more coastal countries
(“straddling-stocks”) or that migrate from the EEZ to the high seas beyond (“highly
migratory species”). Such cooperation could be developed through bilateral, regional or
international arrangements of agreements.
The EEZ regime also dealt with “anadromous stocks” (species that were born in coastal
states waters and mature at sea), and the catadromous species (species that originated on
the high seas and mature in the EEZ, as well as with the “sedentary species” that belongs
to the regimes of continental shelf. The EEZ regime also dealt with the right of the
LLGDS to participate in the exploitation of the surplus living resources of the EEZ based
on bilateral, sub-regional, or regional agreements.
The EEZ articles also dealt with the problems of enforcement as well as with the
delimitation issues between states. It also obliged the coastal states to show the outer
limits of their EEZ on charge of a scale or scales adequate for ascertaining their position
and shall give due publicity to such charts or list of geographical coordinates and shall
deposit them with the Secretary General of the UN (Article 75 (2)). The regimes of the
EEZ as indicated above have been ratified by 156 countries as of 16 July 2008.
What is not well regulated was whether military activities such as “military exercises”
and “intelligence gathering” activities could be carried out by a state in the EEZ of other
countries. In this context it should be noticed that certain regime of the high seas (Article
88-115) applies to the EEZ, including the uses of the sea for peaceful purposes, the
principle of “due regard” for the interest of others, the immunity of ships, as well as the
rules on piracy, hot pursuit, and others.
Indonesian Practice
Indonesia issued Government Declaration on EEZ on 21 March 1980 following the final
negotiation on the EEZ. The Declaration stated that Indonesian EEZ of 200 nautical miles
is measured from the baselines of its archipelagic waters. The Declaration confirmed to
the subsequent text of UNCLOS. The Declaration was later enacted into Law No. 5/1983
dated 18 October 1983. The Law deals with:
a. Rules on Surplus and the issues of MSY, TAC, and capacity to harvest, as
well as on the delimitation.
b. It also dealt with rules on lialibility and compensation for damage,
including damage to marine environment in the EEZ.
3
c. It charges the Indonesian Navy for the responsibility of law enforcement
in the EEZ (Article 14 (1)).
d. Illegal fishing in the EEZ as well as penalty for violation of the rules,
including fines and confiscation of the catch and the offending ships.
e. The Law No. 5 has further been regulated by Government Regulation No.
15/1984, dated 29 June 1984, which regulates further the management of
the living resources in the EEZ, including the possibility and rules of joint
venture and other cooperation with foreigners, the prohibition of the use of
explosive, cyanide, and other dangerous fishing activities, fishing permit,
and the utilization of the “surplus” fisheries resources based on bilateral
agreement.
f. Various Ministerial Regulations on fishing permits have later been issued
for fishing in the Indonesian EEZ
Unsettled Issues
It should be noted that EEZ is not the “territory” of a coastal states but the “zone” of the
coastal states, mainly for economic purposes. Neither the EEZ is part of the high seas,
because the regime of high seas applies to all parts of the seas “that are not included in
the EEZ, in the territorial sea, or in the archipelagic waters of an archipelagic states”
(Article 86). Therefore, not all military and intelligence gathering activities on the high
seas could be exercised in the EEZ of other countries, although the freedom of navigation
and overflight is recognized in and above the EEZ.
These uncertainties with regard to the regime of military exercises and intelligence
gathering activities of other countries in the EEZ have been the causes of the various
incidents and armed conflicts. In view of this, a group of experts on maritime issues have
worked between 2002-2005 to attempt to formulate certain guidelines and have submitted
them to the international communities for consideration.
4