Karya I Made Andi Arsana, ST., ME Batas Maritim Antarnegara - Sebuah Tinjauan Teknis dan Yuridis (Gadjah Mada University Press, 2007) more...

Friday, May 13, 2005

National Seminar: The Fragility of Indonesia’s Archipelagic Boundaries, Reflection of our society for Ambalat

[a small note]

The seminar organized by Gadjah Mada University’s Geodetic Engineering Students Association and supported by Coordinating Agency for Surveys and Mapping (Bakosurtanal), was opened by Prof. Indarto, dean of Engineering Faculty, at 9.00 am. Some items are important to be noted as critical phenomena reflecting the way our society responds to such an international conflict.

Once again, Ambalat is not an island.
It is anticipated that some people are not aware that Ambalat is not an island. They think that Ambalat is an Indonesia’s island claimed by Malaysia. This is even worse because the opinion said not only by ordinary people but also by the dean when giving an opening speech. A speaker from Law faculty, unfortunately also said something similar. What a shame! This is a very serious mistake especially when addressed by an academia, the one people should trust. Believing Ambalat as an island gives a significantly different legal perspective to the case. In the principle of sovereignty, two terms are known: sovereignty and sovereign rights. The two terms are significantly different and need serious awareness before applying them to such an international case. Sovereignty is applicable to land territory (e.g. island), internal waters (or archipelagic waters) and territorial sea. If some people think that Ambalat is an island, they may also think that full sovereignty must be applied. This could be worse because they will opine that Ambalat is an island that belongs to Indonesia and is currently claimed by Malaysia. Understandable if ‘war’ and ‘Ganyang Malaysia’ are their answers.
Once again, Ambalat is not an island but seabed area which is predicted (according to available data) to conserve potential oil and gas deposits. This was asserted by Arif Havas Oegroseno, the director of Directorate of Treaties on Political Security and Territorial Affairs, Indonesia’s Department of Foreign Affairs. Simply speaking, talking about Ambalat is talking about seabed, not an island. According to its distance from Borneo, Ambalat lays in the Exclusive Economic Zone of Indonesia and Malaysia or even in the Continental Shelf because it relates to seabed area.

Malaysia is not entitled to claim Ambalat?
An Indonesian official stated that Malaysia is not an archipelagic state, thus it is not entitled to territorial sea claim. This is a ridiculously misleading statement.
According to the convention on the law of the sea, a coastal state was entitled to claim territorial sea, EEZ, and Continental Shelf as long as it meets required criteria (distance and geology). Undoubtedly, both Indonesia and Malaysia, which has ratified UNCLOS III, are entitled to claim maritime zones. However, as can be predicted that there will be overlapping claims between the two states. Ambalat, in this case, lays in that overlapping claim. Therefore, Malaysia, as well as Indonesia can legally claim the seabed area.

Sipadan and Ligitan, what are their roles?
The award of Sipadan and Ligitan to Malaysia in 2002 by ICJ may potentially change the configuration of Indonesia and Malaysia’s baselines. The new Indonesia’s law about baseline no longer considers the two islands as its basepoints, that consequently shrinkage maritime zone it may claim. On the other hand, Malaysia can possibly use the two islands as its basepoints, which consequently can enlarge its maritime claims southward. This also strengthens the rationale of Malaysia’s claim over Ambalat. However, it is still possible for Indonesia to reject Malaysia’s argument to give full effect to the two islands, so their influence to the claim can be minimized

Justification of the claims and partial claim
People said that Indonesia’s claim over Ambalat is stronger than Malaysia’s because it is based on the UCLOS III. On the other hand, Malaysia’s claim is based on its 1979 map that failed to obtain recognition from neighboring countries including Indonesia. This is partially true, but it does not necessary mean that Malaysia does not refer to UNCLOS III, given that Malaysia has also ratified the Convention. The 1979 map, on the other hand, was made unilaterally and Indonesia sent a protest note in February 1980. It is worth noting that Malaysia, however, could propose any claim for whatever it is. If Indonesia and other surrounding countries do not protest, this could be concluded that no parties were harmed. It is Indonesia’s responsibility to proactively respond to such action and has its voice heard. With strong evidence and argument, Indonesia could simply accept or reject. At the end, it is negotiation and bilateral mutual agreement to achieve a solution. Similarly, Indonesia also did similar thing to the little Palau by claiming maritime zone beyond median line between Indonesia and Palau. Since Palau is quiet, nobody reacts emotionally. However, a mistake could not be paid by mistake. Malaysia’s unilateral claim over Ambalat could not easily be apologized just because Indonesia did the same to Palau.

Submit the case to the ICJ?
Clive Schofield, a presenter from Center for Maritime Policy, University of Wollongong, said that negotiation is the best recourse to solve the dispute between Indonesia and Malaysia. Negotiation could possibly lead the countries to achieve a win-win solution. However, each party can not expect to obtain its 100% claim in a negotiation. This is why, still according to the same speaker, Malaysia can legally claim Ambalat as its maritime zone.
Submitting the case to the ICJ means the two parties in question will lose their control over the case. Simply speaking, we rely on the third party to solve our problem, while nobody guarantees that the third party could understand emotional and historical factors lie beneath the case. This can even be worse if we are not that good in preparing legal evidence.

Indonesia and its experts
An important thing people should note is that Indonesia has actually signed significant number of maritime boundary agreements with its neighbors. Clive, with his summary, showed at least eight agreements has been achieved. What an amazing achievement, we could say. This is important to be socialized and published so people are aware and give more respects to what government has done. Clive also said that Indonesia is the father and mother of Archipelagic State, who has contributed significantly in the establishment the UNCLOS III. The concept of archipelagic state and baselines are Indonesia’s contribution to the convention.
As Indonesia has had experiences in resolving maritime boundary conflict with its neighbors, it is apparent that Indonesia should be confident to negotiate the Ambalat case with Malaysia.

Closing Remarks
The seminar reminds us about three things at least:

  1. Indonesia is supported by qualified experts and adequate experience. Unfortunately not many of the experts can communicate and explain a complicated case such as Ambalat to the laymen with simple and easily understandable language.

  2. Ambalat case, as many other international cases, in a sense, is a confidential case because it has not yet been completely negotiated. Consequently, government officials, most of the time, have to keep it secret, especially regarding the strategy for negotiation. People should understand this because it has nothing to do with transparency but as a strategic effort to save the negotiation. It is important to distinguish when to be transparent and when to be confidential.

  3. Government, public figures, experts, academia, and media have to work together in a spirit of nationalism. Extreme news, undoubtedly, will boost the sale of newspaper or magazine but on the other hand this also stimulates chaos. Government officials have to be really careful in revealing a statement since a statement without acceptable scientific and legal reason can weaken Indonesia’s position internationally.

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