DR Damos Agusman’s writing was a very articulate and enlightening commentary regarding FIR, unfortunately due to its limitations, the contents of the writing as a whole can mislead the reader in terms of understanding state air sovereignty. This can be misleading if not explained thoroughly and comprehensively including what actually occurred in the field. DR Damos’s limitations are very understandable because he does not possess a background in the field of Aviation Engineering and lacks an understanding of the details of state defense and security. Therefore, he is unaware of what actually occurred in the Riau Islands airspace in the context of the security defense of NKRI (the Unitary State of the Republic of Indonesia).
In addition, his review did not touch on the matter of the Riau Islands as being a critical border region, which easily triggers border disputes, which has caused many wars throughout the history of mankind. In order to rectify this information, I have presented the following points in response to Dr. Damos Agusman’s writing from an Authority who is an Aviation Practitioner (Air Force Pilot – once served as Air Base Commander in the Indonesian border area) as well as an Air Law Academician who is active in following the developments of international air law on the global scale.
Holding a doctoral degree in the field of air law, DR. Supri Abu SH MH is competent and able enough to rectify DR Damos Agusman, whose background is not related to the technical aspects of aviation and state defense. DR. Supri Abu SH MH responds with respect to DR Damos as a scientist who has much involvement in International relations.
The following is the response from DR Supri Abu SH, MH
(Responding to the writing of Dr. Damos Agusman):
Fundamentally, the writing of Dr. Damos, which is an analysis of FIR, is not based on or refers to the 1944 Chicago Convention. Please note that Article 1 of the Chicago Convention states very clearly that each state has complete and exclusive sovereignty. Furthermore, Annex 11 of ICAO regulates Air Traffic Services, which covers regulations regarding issues on FIR. DR Damos expressed that FIR issues are not related to sovereignty but are only related to aviation safety, which seems to be inaccurate. An analysis can be made based on Section 2 of Annex 11 which states, “Contracting States shall determine, … for territories over which they have jurisdiction, those portions of the airspace and those aerodromes where air traffic services will be provided .” This shows that a state has sovereignty and the obligation to provide air traffic services and this is evidence of recognition by each country on the acknowledgement of sovereignty. Air traffic services include FIR. Thus, there is a close connection between FIR and the sovereignty of a state.
The next response to the writing of DR Damos is in regards to the explanation that FIR is not always identical with the territory of a state and that all regions on this earth have to be plotted for the purpose of FIR, which is correct. However, it must also be understood, once again that it is the state that has the sovereignty over the area that has the first obligation to establish a FIR. In this case, those with land bordering other countries, national boundaries are always identical to FIR boundaries. However, the case is different for countries bordering international regions such as Indonesia, which has free air space.
In accordance with the provisions of the ICAO, these rights must be discussed regionally with the involvement of surrounding countries to reach an agreement, which must then be approved by ICAO. This is what causes the area of a state to not to be the same and identical to the area of FIR. Therefore, in this aspect, it is clear that it not just a mere consideration of safety. Furthermore, it is explained in Annex 11 Article 2.1.2 that, “Those portions of the airspace over the high seas or airspace of undetermined sovereignty where air traffic services will be provided shall be determined on the basis of regional air navigation agreements.”
Thus, it can be concluded that the initial basis for providing air traffic services is the area of sovereignty. However, the provision of air traffic services can be delegated with restrictions, as explained. Thus, it is also very clear that determination of the existence of FIR is based on airspace sovereignty, and that means that FIR is closely connected to sovereignty. This conclusion at the same time refutes the writings of DR Damos which states that, “but that does not mean that the owner state must be the controller of the air above it.” Because air control is the implementation of sovereignty.
Back to the issue of FIR in the Riau Islands, the responsibility for the provision of air traffic services can indeed be delegated, as stated in Article 2.1.1 that, Note … “if one state delegates to another state the responsibility for the provision of air traffic services over its territory, it does so without derogation of its national sovereignty. In this case, it can be interpreted that if a state delegates its airspace flight navigation services to another state, it does not derogate the sovereignty of the delegating country.
In other words, the state that receives the delegation only manages technical and operational issues, and will not deviate from the context of aviation safety and smooth air traffic flow in the airspace. In this case, indeed sovereignty can be derogated if done by agreement because it is also an International Law, however ICAO has also stipulated that, “Both delegating and providing States may terminate the agreement between them at any time.”
In accordance with the opinion of Hans Kelsen who stated that sovereignty is the essence of the quality of a state, the state must hold the highest authority. Authority is usually defined as the right or power to issue mandatory orders. Real power is to mandate others to follow certain orders and not to justify an authority. The individual must be obliged to accept the right to mandate an order, so that other individuals must comply.
In this case, authority is the beginning of normative order. In addition, the function of international law in the context of legal science is to function as a rule or principle that applies to its subjects, as well as an instrument used by the government of a state to achieve its national goals.
For this reason, in order to establish the highest authority of the airspace over the Riau Islands, which is currently under Singapore civil aviation authority, all Indonesian airspace must be controlled by itself, including airspace over the Riau Islands, which is controlled by Singapore, known as Singapore FIR.
In regards to the opinion of DR Damos that “Indonesia cannot interpret control by Singapore … as the erosion of Indonesian sovereignty.” On this matter, it can easily be proven that in the name of FIR, Singapore has established a Singapore “Danger Area” in the airspace and the Indonesian Exclusive Economic Zone as a Naval Carrier Operation Area (WSD15) and Naval Exercise Area (WSD45) up to FL 550 without permission or approval from the Government of the Republic of Indonesia.
Not only that, Singapore has freely used the area for military flights argued as a “Traditional Training Area.” (Terminology that has no legal basis). DR Damos must not be aware and not have an understanding of this.
Thus, it is very clear that the determination of the Danger Area is beyond the Singapore aviation authority and violates Indonesian sovereignty, including establishing an airway to avoid the area which is detrimental to Indonesian civil aviation. Can this be considered as not undermining Indonesian sovereignty? or can DR Damos easily say that sovereignty is complete and irrelevant? In this context, perhaps DR Damos needs to see the reality in the field and not only explore this problem with a simple approach in the sense of seeing the FIR issue as a simple problem, a problem that is merely a matter of international relations.
I myself, without the slightest intention of reducing the respect for the role of diplomats, agree that the Singapore FIR takeover can simply be carried out using a technical approach rather than a diplomatic approach, because diplomats in general will concentrate “mainly” on their main tasks that are oriented to international relations. In addition, diplomats may find the FIR issue difficult to understand that involves aviation technical aspects, such as Danger Areas.
For this reason, in the framework of the takeover effort, the provisions of the ICAO must be used as the main reference. In this case, the approach that must be used is an airspace approach that is under the responsibility of Indonesia. With the approach of Indonesian sovereignty over their region, there is no reason for rejection from Singapore and Malaysia or other countries. This is of course not the case if the FIR management area covers free airspace, coordination between Singapore, Malaysia, and Indonesia needs to be done because this region does not enter the state sovereignty airspace.
Finally, we will find it easier to develop a technical FIR takeover plan by referring to the steps taken by Cambodia to take over its FIR from Thailand. Cambodia had firstly adopted a technical approach and in 2000, Cambodia built its international navigation service and later in 2001 made a working paper on ICAO. Finally, although many opposed, based on the principle of state air sovereignty, Cambodia obtained sovereignty over its airspace since 2002. (Dr. Supri Abu SH MH).
That is the response from DR Supri Abu SH, MH, which hopefully can be understood by all parties who have been undecided in their views regarding the Singapore FIR issue. The instruction of the President of the Republic of Indonesia is very clear as stated by the Minister of Transportation, Ignasius Jonan at a press conference at the Presidential Office on Tuesday, 8 September 2015, that we must immediately take over the Singapore FIR. There are no other options or interpretations.
Jakarta 4 March 2019