DEPARTMENT OF FOREIGN AFFAIRS
REPUBLIC OF INDONESIA
Unofficial translation
Number 07 987/93189
The Department of Foreign Affairs of the Republic of Indonesia presents its compliments to Her Britannic Majesty's Embassy in Jakarta and has the honor to refer to the Embassy's note number 74 dated October 6, 1993; concerning the Agreed Record of air service talks between Indonesia and the United Kingdom, dated 11 September 1991.
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The above Embassy's note has been carefully considered by. the Government of Indonesia and still the Government of Indonesia has come to the same conclusion, that there is no doubt that the draft of Air Service Agreement constitutes an ad- referendum agreement. In fact that the draft text of the Air Service Agreement between the two Governments is still in draft form and has not yet been signed by their respective representa- tives. Moreover, in the text of the draft itself, Article 22 concerning its entry into force provides that the Air Service Agreement shail only enter into force after the Parties have given notice in writing to each other that all the necessary procedures have been completed. In fact, neither party has made any such notification up to the present. It is also important to note that paragraph 3 of the Agreed Record dated September 11, 1991, clearly states that the Air Service Agreement has not entered into force, although some of its Articles would be applied provisionally.
The phraseology of the Embassy's note does not give any clear indication as to whether the contents of the note constitutes an official position of the British Government or merely reflects the position of the British Legal Authorities or reflects only the opinion of the Embassy. Whatever the case may be, it is nevertheless deemed necessary for the Department to comment on paragraphs 3 and 4 of the Embassy's note as follows:
The Embassy, should have no difficulty understanding the proposal of the Indonesian Government and would have been spared any puzzlement over the reference to Article 1 of the Chicago Convention if the Embassy were diligent enough to take into account that Indonesia has the status of an Archipelagic State which is a well known fact, and to keep track of developments in International Law, particularly those concerning the difference of scope between the concept of a state's territory as stipulated in the 1944 Chicago Convention and that stipulated in the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
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In the
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1982 UNCLOs (Article 2 to Article 29); Archipelagic Waters has been recognized as one of the elements of territory of an Archipelagic State, aside from. the land territory, the territorial, waters and the airspace above them. On the other hand, the 1944 Chicago Convention on International Civil Aviation only recognizes the land territory, territorial waters and the airspace above them as the elements of a state's territory. Moreover, Article 2 of the Chicago Convention refers only to the land territory and the territorial sea as the elements of a state's terri-. tory without clearly mentioning that the airspace above also constitutes a part of a state's territory. It would there- fore be more appropriate to refer to. Article 1 of the Chicago Convention rather than refer to Article 2 even if Article 1 itself is not entirely adequate because this Article only refers to the term territory in general without further specifying its elements..
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formulation of the territorial clauses in the Agreement for. the Avoidance of Double Taxation and that on the Agreement on Copyright Protection are quite necessary to ensure that the term "Indonesia" shall cover not only "areas" where Indonesia can exercise its sovereignty, but also "areas" in which it cannot exercise its sovereignty but only its sovereign rights over the natural resources, as well as jurisdiction for law enforcement purposes. This could be understood since taxable activities and protection of copyrights are not limited only to activities in the "territory" of a state but also beyond that, such as in the Exclusive Economic Zone and the Continental Shelf: While on the other hand, in the draft Air Service Agreement the clause is essentially to define the term "territory", over- which Indonesia exercises its sovereignty.
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On that basis, it is very clear that the clauses defining "Indonesia" in the Agreement for the Avoidance of Double Taxation. * and in the Agreement on Copyright Protection are representing an entirely different case to the clause.defining "the area" in the Air Service Agreement.
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After these clarifications, the Department of Foreign Affairs hopes that the British Government could show its readi- ness to understand Indonesia's position.
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Despite the differences of position of the two countries, the Government of Indonesia still wishes to approach this issue constructively and to consider seriously a possible accommodation of the British Government's position as long as it would still be in line with the compromise formulation provided in the Agree- ment for the Avoidance of Double Taxation and in the Agreement on Copyright Protection, to the extent that the legal reference of the clause were only made in general, namely to International· Law. ↑
The proposed new formulation would therefore entirely read as follows
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"The term area in relation to Hong Kong includes Hongkong Island, Kowloon and the New Territories and in relation to the Republic of Indonesia shall have the meaning assigned to its "territory" in accordance with International Law".
It would be appreciated if the Embassy could kindly transmit the above clarification and proposal to the British Government for their serious consideration.
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The Department of Foreign Affairs of the Republic of Indonesia avails itself of this opportunity to renew to Her Britannic Majesty's Embassy in Jakarta the assurances of its highest consideration.
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Her Britannic Majesty's Embassy; Jakarta
Jakarta, 30 November 1993
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