AN INDONESIAN VIEW OF THE OFFSHORE BOUNDARY QUESTION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP08C01297R000100170001-4
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: September 4, 2012
• Sequence Number: 1
• Publication Date: April 11, 1969
• Content Type: CABLE

Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
A/1A cum PE
AID
) Ie
FROM Amentbassy DJAKARTA GATE: April 11, 1969,
SUBJECT: An Indonesian View of the Offshore Boundary Question
REF Djakarta 2110
r Attached As an Embassy translat.ior, of portions of a speech by Professor
14OCIITAR KLisumaatmadja at the Faculty of taw of Padjadjaran Univeriity,
Bandung, on. March 1, 1969. Dr. Mochtar, who holds a Master of Laws
degree from Yale University, is Indonesia's foremost international law
authority. Lis speech is of parbicu3.ar interest because he is head of
the Indonesian delegation which is conducting informal talks with
Malaysia on the offshore-boundary question.
In this speech'-,, Mochtar explainit his views on the issues of territorial
waters, offshoi a boundaries for exploitation of subsoil resources, and
related matters-. He accepts the principle of total sovereignty over
territorial, waters and the sea bed below them. He also adheres to the
principle that la naticxi has a right to, the resources of the continental;`
shelf, though Zee holds - that the vatRer.above the shelf, beyond the
ts'ritoria1-aea'c, is apart of the -high seas. Mochtar rejects the i
thesis held-by some countries that'nations have the right to resources
Cf the sea Uott om beyond the limits of the shelf (i.e., beyond a sea
depth of_ 200 md=ters)-. 'rye points out; that Indonesia hez chosen the
'`median--line" principle to determine national rights when more thaa,ooe
country-shared a particLlar shelf. Thus Indonesia draws the offshore
boundary at ti4e halfway .point between the outermost limits of the -national ,
territories o+ Tadonesi`a and her neighbors. He recognizes, however, tb
-other methods ' of reso].ving this question may be legitimate. He recoi-
onesia axed her neighbors should get together as soon as
mends that
possible to . gotiate -,-,greed offshore boundaries.
LY
nclosures:1a stated..
Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
 Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
U4CLASSIPiED
Djakarta A-153
Enclosure I
EXCAVATION OF SEABED AND SUBSOIL NATURAL WEALTH
AND INTERNATIONAL LAW
(excerpts from a speech by Mochtar Kus'un tmadja
at the Faculty of Law of Padja&jaran University,
March 1, 1969)
What is the legal foundation for granting exploration and exploitation
permits for off-shore areas?
As far as they are within the limits of Indonesian waters as stipulated in,
Law No. k, 1960, the permits are granted on the basis of the right of the
state to all natural wealth in Indonesian soil, including its territorial
waters and the seabed. Beyond the territorial limits, the right to the
natural wealth of the seabed is based on tke concept of the continental
shelf.
Thi:i new concept in maritime law was formulated in a Proclamation of
're:;ident Truman of the United States dated September 28, 1945, which stated
among other things:
"Having concern for the urgency of conserving and prudently utilizing its
natural resources, the government of the United States regards the natural
resources of the subsoil and seabed of the continental shelf beneath the
high seas but contiguous to the coasts of the United States as appertaining
to the United States, subject to its jurisdiction and control . . . The
character as high seas of the waters above the continental shelf and the
right to their free and unimpeded navigation are in no way thus atfeetod!.
From the explanation issued together with the above Proclamation of the
President of the United States, it can be concluded that the proclamation
was prompted by the need for mineral reserves, and especially petroleum,
for the sake of America's interest and in order to regulate exploitation,
in the best way possible. This action concerned an area of 760,000 square
miles beneath the sea and vas taken after it had been ascertained that the
continental shelf bordering on the United States contained reserves of
petroleum and other minerals and after off-shore drilling techniques had
reached a stage which permitted exploitation of these natural resour'ees.
Control over the continental shelf does nqt affect the fact that the eaters
above it are a part of the high seas, and thus open to unimpeded navigation.
In subsequent years, the Truman proclamation concerning the continental
shelf was followed by dozens of countries throughout the world, so that at
the Maritime Law Conference held in Geneva in 1958, the continental. shelf
became a new institution of international law through the process of
common law.*
5J)r. i4ochtar refers to general acceptance of the proclamation, not "common
law" in the Anglo-American legal sense.
UNCLASSIFIED
Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
 Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
UNCLASSIFIED 2
Despite one or two extreme claims such as the decree of the Argentine
President in 1946 which proclaimed Argentina's full sovereignty over the
continental shelf and the waters above it, the principle that a country has
exclusive rights to the natural resources of the continental shelf conti-
guous to its coasts has in general been accepted. Generally, the continental
shelf is considered to be all land, under waters up to a depth limit of 200
meters. For this reason, the countries participating in the Maritime Law
Conference in Geneva in 1958 had little trouble in formulating legal provisions
to regulate the rights of coastal countries to control the continental shelf.
These principles weft later cast in a Convention on the continental shelf.
Article 1 of the Convention stated:
"For the purpose of these articles, the term continental shelf is used as
referring (a) to the seabed and subsoil of the submarine areas adjacent to
the coast but outside the area of the territorial sea, to a depth of 200
meters or beyond that limit, to where the depth of the superjacent waters
admits of the exploitation of the natural resources of said areas; (b) to
the seabed and subsoil of similar submarine areas adjacent to the coasts
of islands".
Though the origin is still obvious, yet the above quotation of article 1
clearly shows that the definition of the continental shelf as a legal con-
cept is different from the continental shelf as a mere geologic concept.
First, it is stated that "For the purpose of these articles, the term
continental shelf is used as referring (a) to the seabed and subsoil of
the submarine areas adjacent to the coast but outside the area of the
territorial sea . . ." Secondly, in addition to a depth limit of 200
meters, article I stipulates: ". . . or beyond that limit, to where the
depth of the superjacent waters admits of the exploitation of the natural
resources of the said areas".
Thirdly, the provision in paragraph (b) which expands the concept of a
continental shelf to cover ". . . the seabed and subsoil of -similar
submarine areas adjacent to the coasts of islands".
The limitation as stated by the words ". . . but outside the area of the
territorial sea" is a logical limitation. The seabed and subsoil beneath
the area of the territorial sea are already within the sovereignty of
coastal countries since the territorial sea constitutes an integral part of.
these countries' territories. The enlargement of the concept of continental
shelf to include the seabed and subsoil surrounding an island or archipelago
which do not constitute a continental shelf in the genuine geological sense,
is a very encouraging development.
On the other hand, the enlargement of the concept of a continental shelf
with the additional provision that ". . . or beyond that limit (namely 200
meters), to where the depth of the superjacent waters admits of the exploi-
tation of the natural resources of the said areas" has .of late evoked many
Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
 Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
UNCLASSIFIED
new problems. I will taut about this when discussing the boundaries of
submarine areas controlled by coastal countries.
It is clear that the geological concept of the continental shelf as first
used in Truman's Proclamation in 1945 has been expanded into a legal con-
cent, of the same name but of different contents, albeit the basis of a
country's right to a submarine area adjacent to its coast remains the same,
namely contiguity.
To discriminate between two concepts of different contents, we will in
Indonesia use the term dataran kontinen for the concept of continental
shelf in the (;eological sense of the word, and landas (base) kontinen for
the re:;ultiri legal concept.
We will now discuss the character of the claim of a coastal State over the
continental shelf.
Article 2 of the Geneva Convention of 1958 concerning the legal concept-of
the continental shelf states that (paragralib 1) "a coastal Sate has a
sovereign right to undertake explorations on the continental shelf and to
exploit its natural resources". 'Mis definition is a compromise between
those desiring full recognition of, the coastal State's sovereignty over
the continental shelf, and those who only wish to recognize more limited
rights.
That "sovereign rights to explore and exploit" are not tantamount to full
sovereign rights of a coastal State will be obvious if we link article 2,
paragraph (1) to article 3 which definitely stipulates that "The rights
of a coastal LState over the continental shelf do riot affect the legal status
of the superjacent waters as high seas, or"that of the, air space above those
weters". Thus the concept of "sovereignty to explore and exploit" does not
go so far o:! the concept of sovereignty as practiced by several South
American countries, including Argentina, which actually have made the
continental shelf a part of the State's territory.
Except for the limitation contained in the aforesaid article 3, the rights
of coastal states over the continental shelf are extensive and clearly
exclusive.in nature in the sense that if a coastal state refrains from
exerting its rights on the basis of paragraph (1) of article 2 to explore
the continental shelf and exploit the natural resources in it, no one can,
undertake these activities or claim the continental shelf without the
express consent of the coastal state.
In connection with the discussion of the rights of a coastal state over
natural resources of the seabed and subsoil of the continental shelf, it
is interesting to note the provisions of article 2, paragraph 4 concerning
natural resources, which reads as follows:
UI4CLASSIFIEI)
Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
 ? Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
UNCLASSIFIED 4
"4. The natural resources referred to in these articles consist
of the mineral and other non-living resources of the seabed and
subsoil together with the-living organisms belonging to the
sedentary species, that is to say, organisms which, at the harvest-
able stage either are immobile on or under the seabed or are unable
to move except in constant physical contact with the seabed or the
subsoil."
This provision is a compromise between those parties desiring to limit
the concept of natural resources to mineral resources only, and those
who wish to include bottomfish and crustacea in it. Included in "sedentary
species of living organisms" are sea grass and other sea plants, sponges,'
coral, echinoderms and molluscs, while bottomfish are excluded. There is
disagreement on whether all crustacean species are excluded from the above
definition.
live
Concerning these/natural resources, it could be added that even though
article 2, paragraph 4 of the Geneva Convention of 1958 on the continental
shelf recognized the exclusive rights of coastal States, they may not ignore
the historic rir:;hts of other parties.. The Royal Pronouncement of Saudi
Arabia concerning the "Subsoil and seabed of Areas in the Persian Gulf
contiguous to the coasts of the Kingdom of Saudi Arabia", dated May 29,
1949, emphatically said that ". . . the traditional freedom of pearling by
the peoples of the Gulf, is in no way affected".
Let us now discuss the seconu problem: Where are the boundaries of
sovereignty of the coastal State over the continental shelf?
The sovereignty of a State over the continental shelf adjacent to its
coast is determined by the definition of the continental shelf itself
as contained in article 1, and by the existence or nonexistence of
neighbor countries with coasts adjacent to the same continental shelf.
As is known, the difference between the concept of the continental shelf
according to article I. of the Convention and the then existing concept as
adhered to in practice by the States, is the additional provision that
to. . . or beyond that limit, to where the depth of the superjacent waters
admits of the exploitation of the said areas" in addition to the depth
limit of 200 meters which had been generally accepted.
The progress achieved in the technique of sea exploitation. during the
past 10 years and the interpretation of the aforesaid provision which
only emphasizes "techhical exploitability", evoked an interpretation
which says that coastal states reserve the right to explore and exploit
submarine areas to a depth which could possibly be achieved by submarine
exploitation techniques. With the advance in deep ocean floor excavation
UNCLASSIFIED
Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
 ? Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
techniques, this means that the sovereignty of a state facing the ocean
could cover the deep ocean floor thousands of miles off the coast.
This interpretation of the provision in Article l is unacceptable because
it favors coastal states with a certain geographic location and especially
countries with a high level. of technological development. An interpretation
which separates the criterion of technical exploitability from the principle
of contiguity, which constitutes the basis.of the rights of coastal states
or, submarine areas adjacent to the coast, deviates from the basic concept
of the continental shelf.
Though the concept of the continental shelf in the 1958 Convention is said
to differ from the original concept, so that in Indonesian we use the term
of landas kontinen (continental substratum), the principle of contiguity
with the continent (or an analogous continent) cannot be completely abandoned,
if we still wish to give meaning to the concept of the continental shelf in
maritime law. So, yond a_ certain limit, the sovereignty of a coastal state
muct end and a beginning made for a deep ocean floor area which is detached
from the principle of contiguity.
The time has come to reconsider the provision of technical exploitability
and to replace it with another standard, namely a proper depth limit. We'll
not discuss what standard or depth limit to adopt, since this is beyond the
scope of this discussion. Various concepts and theories can, and have been
put forward, but this matter should be settled by an international convention,
which according to Article 13 of the Convention can be held at any time five
years after the Convention went into effect..
In nyr opinion, there is no urgent reason for Indonesia to adopt the
interpretation which is based on the extremelof technical exploitability.
Both on the Sunda shelf and the Sahul shelf, the depth does not exceed 200
meters. In addition to that, there are other countries adjacent to the two
continental shelves. Thus, such an interpretation will have no impact on
the area of the Sunda shelf and the Sahul shelf which will come under
Indonesia's control.
Article 6, paragraph 1 of the Convention which regulates. the division of
the continental substratum between two neighboring countries which are
opposite each other, reads as follows:
"1. 'Where the same continental shelf is adjacent to the
territories of two or more states whose coasts are opposite
each other, the boundaries of the continental shelf apper-
taining to such States shall be determined by agreement
between them.
UNCLASSIFIED
In the absence of agreement, and unlet'another boundary
line is justified by special circumstances, the boundary
is the median line, every point of which is equidistant from
the nearest points of the baselines from which the breadth
of the territorial sea of each state is measured."
Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
 Declassified and Approved For Release 2012/09/04: CIA-RDP08C01297R000100170001-4
UNCLASSIFIED)
The division of the continental substratum adjacent to the coasts of two
adjacent states is regulated in paragraph 2 which reads as follows:
"2. Where the same continental shelf is adjacent to the
territories of two adjacent states, the boundary of the
continental shelf shall be determined by agreement between
them. In the absence of agreement, and unless another boun-
dary line is justified by special circumstances, the boundary
shall be determined by application of the principle of equi-
distance from the nearest points of the baselines from which
the territorial sea of each state is measured."
It is obvious from these provisions that, though the principles of the
median line and equidistance constitute important principles in the division:
of the continental substratum between neighbor countries, they are not the
only decisive way toward solution. This means that neighboring States meky,
on the basis of other considerations, determine. by agreement a boundary in
accordance with their need, situation and the problem they face.
*In practice, the median line principle is actually used in matters involving
the boundary of the continental shelf, like for instance in the agreement of
October 6, 1966, between Britain and the Netherlands on the boundary of the
continental shelf of the North Sea between these two States. But there. is
also an agreement on the determination of the boundary of the continental
shelf which deviates from the median line, like for instance the agreement
between Italy and Yugoslavia (Adriatic Sea) dated January 8, 1966.
The matter of the boundary of the continental shelf between our country and
neighboring countries of the Sunda shelf (Malaysia, Thailand, Cambodia and
Viet-Nam ) and the Sahul shelf (Australia) should be settled speedily, so that
we may know which part of the shelf is Indonesia's. The settlement of the
boundary of the continental shelf will not only eliminate a source of conflict
bet;ieen neighboring countries, but will also eliminate all uncertainties which
might surround exploration and exploitations and especially. off-shore opera,
tions, adjacent to neighboring states. . .
I will conclude with the following:
Indonesia reserves exclusive rights to explore and exploit natural resources
on the continental shelf adjacent to its coast. This right is based on
international common, law,-which has grown and developed based on practice
of States in connection with the continental shelf and which has been affirmed.
by the 1956 Continental Shelf Convention, which can be considered as a
codification of the existing law in this field.
The fact that the United Ifatio:u did not accept Indonesia's ratification of
the (;oiti:,enai ,~hclf Convention, (and the Fislierie:3 and Protection of
Biologic Life Convention) by Law 1-Jo. 19, 1961 on the three Geneva Conventions
of 1956 on l tarritime Law, does. not diminish Indonesia's rights to the continen-,
t,JU .-half and the principle of contiguity, which have become an, institution
and an unassailable principle of international law.
Declassified and Approved For Release 2012/09/04: CIA-RDP08C01297R000100170001-4
 Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4
UNCLASSIFIED 7
In order to be certain about the submarine areas which Indonesia may claim
as its right, the boundary of the continental shelf had better be determined
through negotiations with our neighbor countries on the basis of the existing
principles of law and justice, and in a elimate.of friendship while mindful.
of common interests.
Until this imperative step to safeguard our interests on the continental
shelf adjace:,t to Indonesia's coasts are taken, and considering that permits
have already been issued for exploration of the continental shelf, we should
present a firm statement expounding the position and policies of. the Republic
of Indonesia on this matter and the steps to be taken.
*'Ibis paragraph appeared in the prepared text of the speech, but was not
actually delivered.
UNCLASSIFIED
Declassified and Approved For Release 2012/09/04: CIA-RDP08CO1297R000100170001-4