PSI AND LAW OF THE SEA: DISCUSSION WITH HASYIM

C O N F I D E N T I A L SECTION 01 OF 02 JAKARTA 001757

SIPDIS

SIPDIS

DEPARTMENT FOR L/OES A.ROACH
USPACOM FOR J6 P.PEDROZO

E.O. 12958: DECL: 06/25/2017
TAGS: PARM MOPS PREL BEXP UNO ID
SUBJECT: PSI AND LAW OF THE SEA: DISCUSSION WITH HASYIM
DJALAL

REF: JAKARTA 1656

Classified By: CDA John A. Heffern, for reasons 1.4 (b,d).


1. (C) SUMMARY: On June 19, Charge discussed the
Proliferation Security Initiative (PSI) with Ambassador
(ret.) Hasyim Djalal, Indonesia's foremost authority on
maritime law. Djalal advises the GOI on martime matters and
his views are widely acknowledged to be a major factor in the
GOI's reluctance to join PSI. While Djalal's writings make
legal arguments against PSI, citing UNCLOS, his key verbal
objection to us centered on the political pressures Indonesia
could face as a major shipping country, if it were to join
PSI. If Indonesia allowed another PSI member to board and
inspect one of its flag ships, Djalal said, the action would
be challenged by nationalists in the press, public fora and
Parliament. If it declined to permit boarding of the suspect
vessel, it would be subject to criticism by its PSI partners.
The GOI resisted endorsing PSI, Djalal said, largely to
avoid facing this dilemma. Charge also briefed Djalal on the
Administration's recent announcement of support for UNCLOS,
and on U.S. assistance to build Indonesia's maritime radar
capability under Section 1206. Embassy would welcome
additional input in responding to Djalal's concerns about PSI
(see para 8). End summary.


2. (U) Indonesian officials routinely invoke concerns about
the Law of the Sea in explaining Indonesia's reservations
about joining the Proliferation Security Initiative (PSI).
Typically they refer to a possible incompatibility of PSI
with the UNCLOS (1982 agreement),but seldom cite specific
UNCLOS provisions. This view is fairly uniform across the
Department of Foreign Affairs (DEPLU),Department of Defense
and Indonesian Navy. The official Indonesian view of PSI is
informed largely by Ambassador (ret.) Dr. Hasyim Djalal,
Indonesia's foremost expert on the Law of the Sea (and father
of President SBY's foreign policy advisor, Dino Djalal).
DEPLU's Secretary General Imron Cotan implicitly cited
Djalal's concerns on UNCLOS in a recent discussion of PSI
with PM Acting Assistant Secretary Stephen Mull (reftel).

PROLIFERATION SECURITY INITIATIVE


3. (U) Djalal said Indonesia's main point of concern over
PSI's implications for UNCLOS centered on Indonesia's
expected role as a PSI member in cases of interdiction:

-- Interdiction could be conducted only with the consent of
the flag state; in Indonesia's case, approval to board an
Indonesian-flagged ship could generate a nationalist backlash
from the DPR, while refusal could open the GOI to accusations
from the international community of abetting proliferation.

In reply, Charge acknowledged that Indonesia faced a set of
competing priorities and needed to decide where WMD
proliferation stood among these priorities.


4. (C) Djalal stated President Yudhoyono had recently asked
the Ministers of Foreign Affairs and Defense to review the
requirements for PSI to see if Indonesia could associate
itself with it. The ministers had recommended Indonesian
participation on an "ad hoc, case-by-case" basis, but this
approach had been rejected by the legislature's Commission I
(responsible for foreign and security affairs). Djalal said
he was unfamiliar with the notion of a "bilateral PSI,"
something DEPLU has offered to explore with us in the past.
Noting that India, China and South Korea had not joined PSI,
Djalal suggested their accession might encourage Indonesia to
reconsider its position.

ADDITIONAL RESERVATIONS


5. (U) At an international conference on maritime law in
Kuala Lumpur in April 2007, Djalal took a different tack. In
that discussion, he maintained PSI "could fundamentally
affect the development of the Law of the Sea and maritime
issues" and might "negatively affect" freedom of navigation
on the high seas. PSI was an attempt, he opined, to change
customary international law by expanding interdiction
authority at the expense of coastal state and flag state

JAKARTA 00001757 002 OF 002


authority and jurisdiction; any such changes should be
effected through "regional arrangements or organizations."
Djalal did not cite these more legalistic points in our
discussion on June 19, which focused only on the political
issue.


6. In asserting that the application of PSI in Indonesian
waters might be inconsistent with UNCLOS, Djalal cited three
UNCLOS provisions:

o Article 17, which guarantees the right of innocent passage
through the territorial sea,"
o Article 38, which assures all ships and aircraft of
unimpeded transit rights, and
o Article 52, which grants to ships of all states the right
of innocent passage through archipelagic waters.

CONTAINER SECURITY INITIATIVE NOT A SUBSTITUTE


6. (C) Djalal said Indonesia had tried to strike a balance
with the Container Security Initiative (CSI),and that an
initially skeptical GOI had eventually become persuaded of
CSI's merits. However, the United States had not yet
approved Indonesia for CSI. Charge said CSI, which focused
on ports, worked well in friendly countries but was
ineffective in stopping direct shipments from one
proliferator to another. Inspections and possible
interdiction at sea was the only effective solution to the
matter. A proliferator would remain outside the scope of CSI
and, most likely, other international nonproliferation
agreements as well. Any intervention in such a country's
ports or other facilities would be tantamount to an act of
war and was therefore something to avoid if at all possible.
It was less aggressive to interdict a suspect ship in
international waters, as PSI was designed to do. Djalal was
not presuaded.

COMMENT AND REQUEST FOR GUIDANCE


7. (C) Djalal's argument appears to be, at least implicitly,
that the UNCLOS provisions are absolute and override any
interdiction authority under PSI. We have tried to challenge
this interpretation, so far to no avil. We believe the
alleged legal contradictions are a smokescreen for avoiding
tough political decisions on boarding, inspection and
interdiction. In that vein, we will continue to remind the
GOI of its nonproliferation obligations and commitments and
urge GOI to review its priorities.


8. (C) Post welcomes Washington agencies' input for
responding to these and any other legal objections Djalal has
formally raised elsewhere to PSI.

HEFFERN