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

Monday, December 19, 2005

Tension builds over Ashmore Reef: Is it Indonesia's or Australia's?

- Opinion and Editorial, December 19, 2005
I Made Andi Arsana

Ashmore reef (a.k.a. Pulau Pasir) is currently being disputed by Indonesia and Australia.

If we talk about an island/reef/islet, we are talking about sovereignty. In dealing with sovereignty we do not consider distance.

If we talk about a state authority in the sea territory, we are dealing with sovereign rights, not sovereignty. Distance becomes the key issue as it depends on the distance measured from the baseline, commonly the coastline depicting the low water line. With regards to this, it is true that we need to consider maritime zones and boundary issues. Read more...


Friday, December 02, 2005

Ashmore Reef: Indonesia’s or Australia’s?

I Made Andi Arsana

In Indonesia, Ashmore reef (a.k.a. Pulau Pasir) is recently popular. The hot issue is that the reef has been disputed by Indonesia and Australia. Indonesian Navy’s Chief of Staff stated that Ashmore reef definitely is under the Australian sovereignty (Republika Online, 24 November 2005). This might be quite surprising for some Indonesians believing that Ashmore reef is Indonesia’s.

It is worth mentioning that Indonesian society should have learned much from recent cases regarding boundary and sovereignty. Reading news in the papers and electronic media, it is understandable Indonesians can be easily emotional and sometimes irrational. Legal, technical and scientific aspects are often beyond news’ concerns. Is it because Indonesians love sensation more than information?

Sovereignty vs. Sovereign Rights
If we talk about an island/reef/islet, we are talking about sovereignty. Dealing with sovereignty means we do not consider distance. The statement of Mr. Tanoni regarding the status of Ashmore Reef conflicted with Indonesian Exclusive Economic Zone (EEZ) is indeed not quite right. (Republika Online, 23 March 2003) Just because a reef lies within Indonesian EEZ, it does not necessarily mean that it belongs to Indonesia.

If we talk about State authority in the sea territory, we are dealing with sovereign rights, not sovereignty. Distance becomes the key issue as it depends on distance measured from baseline, commonly coast line depicting the low water line. With regards to this, it is true that we need to consider maritime zone and boundary issues governed by the United Nations Convention on the Law of the Sea (UNCLOS).

Ashmore: Whose Reef Is It Anyway?
The sovereignty over a reef cannot be carelessly decided. It is not depending on its distance to a State’s main land. It deals with legal aspect.

A website in the Netherlands reveals that Ashmore reef was annexed by Britain in 1878. Together with Cartier Island, Ashmore was transferred to Australia on 23 July 1931 and is then part of the Northern Territory of Australia (1938–1978). In 1978 Australia established Ashmore and Cartier Islands Territory and finally Australian government formed Ashmore Reef National Natural Reserves on 16 Augustus 1983. Of course we do not nave to trust the internet site. More intensive studies need to carry on.

CIA website, one of the resources people may trust, reveals similar facts. CIA’s World Fact Book confirms that Ashmore reef is under the Australian sovereignty. Another support also comes from GEsource website in the UK.

By plotting the coordinates of Ashmore Reef (12° 13.98' S, 123° 4.98' E) in the Indonesia-Australia EEZ boundary map, it is clear that Ashmore Reef lies within the Australian EEZ. This, implicitly, implies that Indonesia has acknowledged the Australian sovereignty over the reef.

From a historic point of view, it is true that the ancestors of Timor people came to Ashmore Reef since 1630s. However, Rais (2005) asserts that the Netherlands never secured the reef in its colonial territory and the government administering the reef was Britain. Indonesia could not claim Ashmore Reef just because their ancestors came there, did economic activities and died in the reef provided that the government administering the reef was not its predecessor (the Netherlands). In their article in Kompas (11 April 2005) Prof. Jacub Rais and J.P. Tamtomo assert that the Indonesian Proclamation of Independence secured all the former areas of the Netherlands (not others) as people in those areas had the same experience during colonialism.

It is indeed ironic that Indonesians (Timorese and others) who have been visiting and carrying activities in Ashmore Reef for hundreds of years (Kompas, 28 May 2005) are not entitled to own the Reef, while Britain (Australia), who “discovered” Ashmore in the nineteenth century, secures stronger rights. It is worth noting that modern law emphasizes legal claim rather than visits and activities. If it is true that Britain legally claimed and administered Ashmore Reef and the Netherlands did not protest, its sovereignty will obviously be Australia’s.

By contrast, Ferdi Tanoni states that there are strong evidences that Ashmore Reef were part of the Netherlands during the colonial era. He asserts that the implementation a regulation regarding sea cucumber and other marine biota collection around Ashmore Reef is a convincing evidence for its claim over the Reef. Unfortunately he did not specifically mention the document he referred. However, it this is true, it could possibly invalidate British Claim over the Reef in the eighteenth century.

Agreements between Indonesia and Australia
In 1971/1972, Indonesia and Australia agreed Continental Shelf (CS) boundary (seabed) where the boundary line located far North, close to the island of Timor (Indonesia). Some experts opined that it is not an equitable boundary. Apart from the unfairness and the failure of Indonesian diplomacy in the past, it is worth understanding that the agreement was signed before the UNCLOS came into force. Therefore, the quality of the agreement could not be judged using UNCLOS.

The Australian argument emphasized the principle of natural prolongation. The data available at that time suggested that the natural break of the Australian continent and Indonesian continent exists close to Timor Island, so that the CS boundary lies far from the median line favoring Australia. This practice was supported by legal development at that time. The ICJ’s judgment on 20 February 1969 regarding The North Sea CS case between Germany and Denmark, for instance, significantly considered geomorphology of the seabed or the principle of natural prolongation. In other words, Australian argument was supported by jurisprudence. However, the development post-UNCLOS tends to consider seabed geomorphology less. In the case of Libya and Malta (1985), for example, the ICJ decided that within 200 nautical miles, seabed geomorphology is irrelevant and the court’s judgment was based on distance principle.

It might be true that the CS boundary between Indonesia and Australia is inequitable. However, it is worth noting that the decision was with regards to the positive law applicable at that time. If required, Indonesia may renegotiate the boundary with Australia, provided that Australia agrees to do so. However, it is most likely that Australia does not want renegotiation.

Another agreement requiring attention is the 1997 EEZ boundary. Unlike the CS boundary, this is much more equitable as the border lies in the median line between the two States. Unfortunately, Indonesia has not yet ratified the agreement in its internal law.

Regarding Ashmore Reef, there is an MoU in 1974/75 allowing Indonesian traditional fishermen fishing around Ashmore Reef. Surprisingly (to Indonesia) Australia, in 2002/2003, restricted Indonesian fishermen from fishing in the area due to environmental conservation. This must attract the attention of Indonesian government and it should responsively clarify this as this endangers Indonesian fishermen’s life.

The Last Words
Undoubtedly, it is Indonesians obligation to keep the archipelago exists and united. However, clear understanding regarding legal, technical and scientific aspects are essential. Everybody should carefully analyze and be more critical toward every single issue regarding border conflict. A wrong decision may lead Indonesia to a huge material loss as well as reputation degradation as it might be considered as an emotional and irrational society.

The available legal evidences, so far, tend to suggest that Ashmore Reef is under the Australian sovereignty. However opinions and arguements sugesting that it is part of Indonesian Territory is worth to seriously consider. Let’s do our parts and let the governments do their best to achieve the most equitable solution for both sides.