With a large territory and strategic position in the Southeast Asia region, Indonesia significantly contributes to aviation safety activities. However, the fulfillment of the safety standards in air navigation services within its jurisdiction can be challenging. In regard to its air navigation services, which entail international safety standards and jurisdiction over its own air space, Indonesia decided for the first time in the International Civil Aviation Organization (ICAO) meeting to delegate its ‘jurisdiction’ in air navigation services over the Natuna and Riau islands to Singapore in 1973. This decision arose from the 1st Regional Air Navigation (RAN) Meeting for the Asia-Pacific Region in Honolulu (Supriyadi et al. 2020).

Over the course of more than three decades after that delegation, Indonesia has made several attempts to reclaim it in several RAN Meetings but has been unsuccessful. The recent enactment of the Indonesian Aviation Act (Act Number 1 of 2009) leaves the government no choice but to reclaim national control, mandating that the Indonesian National Air Traffic Service Provider (LPPNPI) assume responsibility for the services delegated to Singapore by 2024 as stated in Article 458:

“The airspace of Indonesia, where had been delegated to other countries under the agreement, must be evaluated and served by the National Navigation Service Provider no later than fifteen years after this Law applies.”

The first delegation in air traffic services above the Natuna and Riau islands was legally formalized through the ‘Agreement Between the Government of the Republic of Singapore on the Realignment of the Boundary Between the Singapore Flight Information Region and the Jakarta Flight Information Region’ in 1995 and it was successfully ratified into Indonesian national Law in Indonesian President Decree Number 7 of 1996. This agreement, in adherence to international requirements as a source of international law, carries a fulfillment according to the Statute of the International Court of Justice, Article 38 (1), which states: 1) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; 2) International custom, as evidence of general practice accepted as law; 3) The general principles of law recognized by civilized nations; 4) Subject to the provision of Article 59 of the statute, judicial decisions, and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law.”

Furthermore, the most practiced sources of international air law are treaties, conventions, and other instruments that are binding under international law, multilaterally and bilaterally. Therefore, the parties of the agreements have legally binding obligations in international law to which the treaty creates the rights and responsibilities of the parties in the agreement (Diederiks-Verschoor et al. 2012:8). In the case of the Überlingen accident, the German government and Swiss air navigation provider company, Sky-Guide, made a joint decision to manage the airspace above Überlingen. However, they had not yet signed the Letter of Agreement that typically aligns with the principles established by the International Treaties Convention of 1969 (VCLT). Unfortunately, this decision had legal ramifications when the accident occurred (Simatupang 2016).

This research aims to explore the consequences of the agreement between Indonesia and Singapore, which was ratified in 2022, in light of the established historical and legal framework within the context of international law. To deal with this matter in a comprehensive manner, the study adopts a normative juridical methodological approach.

This study employs a conceptual approach and primarily uses the normative juridical method to examine the international legal framework established in the Chicago Convention of 1944 on International Civil Aviation. The analysis also evaluates the implications of the delegation agreement in navigation services in 2022 between Indonesia and Singapore on the issue of sovereignty within the airspace of the respective states.

Exploring air navigation services delegation and state sovereignty in International Aviation Law

The authority of a state to exert control over its territory (jurisdiction) is closely tied to its sovereignty, which is the most critical aspect of international law principles. The right, furthermore, in air law, is recognized in Article 1 of the Chicago Convention 1944 on International Civil Aviation (Chicago Convention 1944). Based on this legal principle, every state in the world shall respect the sovereign rights of other states (Abdurrasyid 2009).

Within the realm of jurisdiction, a state is granted the power to exert authority over all individuals and entities within its territorial limits, including the provision of air navigation services. As air space activities transcend borders, it is universally recognized that a state’s jurisdiction may extend to aircraft operating within the territories of other states (Pramono 2016).

However, aviation operations are not limited to a single territory, but are also classified as a transnational activity. Therefore, when aircraft flights cross into another territory, they require guidance from ground officers. The state below the air space is responsible for providing the service to the aircraft, as mentioned in Article 28 of the Chicago Convention 1944:

“Each contracting State undertakes, so far as it may find practicable, to:

Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention;”

ICAO member States are obligated to standardize air navigation services at aerodromes and in air space, as per Annex 11 of the Chicago Convention 1944. This requirement necessitates the provision of air navigation services in the specified areas, which should conform to the established standards (Abeyratne 2012). Article 25 of the Chicago Convention 1944 mandates that the principle of determination also applies to aircraft in distress. Furthermore, it stipulates that every member state of the International Civil Aviation Organization (ICAO) must provide any feasible measures of navigation assistance to distressed aircraft flying within its airspace.

There exist various reasons why numerous nations opt to transfer their responsibilities to other states or international organizations. These reasons may include geographical positioning, effectiveness, and capability to offer services. In situations where a state chooses to delegate its responsibilities of serving and providing air navigation services in the airspace, a cross-border air navigation services agreement must be established to stipulate the provisions of the delegation (Antwerpen 2008:95). Thus, agreements between two countries or between countries and international organizations should consider the interests of transboundary or air traffic services. This may include the option to transfer authority or legal enforcement competencies, as informed by other states. The agreements should be formal and fair, accommodating the needs of all parties involved.

The obligation to make an agreement in the delegation of air traffic services is stated in Standard 2.1 of Annex 11 (Air Traffic Services) of the Chicago Convention 1944:

“Contracting States shall determine … those portions of air space and those aerodromes where air traffic services will be provided. They shall thereafter arrange for such services to be established and provided … except that, by mutual agreement, a State may delegate to another State the responsibility for establishing and providing air traffic services in flight information regions, control areas or control zones extending over the territories of the former.”

It is essential to emphasize that the phrase “by mutual agreement” implies that both parties, the delegating state, and the delegated state, must derive mutual benefits from the agreement. This reciprocal benefit may manifest in various risk forms, such as economic, political, social, or strategic benefits. Moreover, the ‘notes’ of this provision does not regulate the status and condition of the sovereignty of the delegating state by stating:

“If one state delegates to another state the responsibility for the provision of air traffic services over its territory, it does not without derogation of its national sovereignty. Similarly, the providing State’s responsibility is limited to technical and operational considerations and does not extend beyond those pertaining to the safety and expedition of aircraft using the concerned air space.”

The explanation provided in the ‘notes’ (Farouq 2019) indicates the potential issues of sovereignty that might be discussed or asked during negotiation or after the delegation agreement has been signed. Hence, the parties of the agreement shall consider the national interest of each party in relation to their international obligation for air safety.

Conclusion

The agreement between Indonesia and Singapore regarding Air Navigation Services conforms to the standards set forth in Annex 11 of the Chicago Convention 1944. Nevertheless, the agreement to delegate Flight Information Region (FIR) in 2022 lacks clarity in terms of the specific roles, responsibilities, and liabilities between Indonesia and Singapore. This has resulted in Indonesia being held accountable for services provided by Singapore’s Air Traffic Control agency, without a clear understanding of shared responsibilities.

The absence of jurisdictional delegation provision for Indonesian Air Traffic Controllers working at the Singapore Air Traffic Control Centre (SATCC) raises concerns about their protection under Singaporean jurisdiction. Any technical issues or errors that occur may require investigation under the lex delicti principle, which could bring Singapore’s jurisdiction to apply.

Authors: Adhy Riadhy Arafah, Aktieva Tri Tjitrawati, Alifia Nuril Bais, Firnida Hanan Nurkhalisha