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


Agus Supriyanto said...

Hello, Mas Andi!

I was very interested to your Ashmore Reef point of view. Although it's a bit 'sitting on the fence' :), I appreciate it as a carefulness of a scientist. However, I doubt this sentence : It is worth noting that modern law emphasizes legal claim rather than visits and activities. I'm not surely a maritime boundary law expert nor even an observer. But if I'm not mistaken, we loosed Sipadan Ligitan in International Court because we had lack of evidences about our visits and activities in those islands. Malaysia has been 'clearly' proved as the owner due to their visits and activities there which mean that they've managed the islands well.
So, what else can Indonesia Gov do instead of 'being calm and patient'?


I Made Andi Arsana said...

What an honour I've got a very interesting and enthusiastic comment from you. Thank you very much and I really appreciate it.

I am afraid that you are right about Sipadan and Ligitan. The principle used in deciding the case, as you must have known, is called the principle of "effectivités". It was convincing that Britain (Malaysia's predecessor) did some legal actions to Sipadan and Ligitan including the building of Light house and the establishment of certain act regarding the management of turtle egg. Those two things are considered as legal evidences supporting the principle of effectivités. At the same time, people from The Dutch administration also came to the Islands for having a rest after fishing and regular patrol but it never officially issued a legal product (law. act, etc) in relation to its claim over those two islands. It can be concluded that it was not the visits but the legal evidence that strengthened Britain (Malaysia)'s position so it won the case. Issuing a law is,
undoubtedly, the strength of Malaysia (Britain).

Just to remind you that the case was stopped in 1969 due to some political reasons where Indonesia and Malaysia agreed that any activities conducted by both parties after 1969 would never be considered as legal actions. This means that whatever Malaysia has done to the Islands after 1969 (building the resorts, managing other tourism facilities, etc) had nothing to do with the decision made by the ICJ. The considerations were purely based on the fact and activities before 1969.

It is true that visits and activities can be considered as part of effective occupation (in relation to the principle of "effectivités") but a legal
claim will be much stronger if a dispute arises.

What can Indonesian Government do?
We can do something to Ashmore Reef if we have LEGAL evidence convincing that it was part of The Dutch during the colonial area as Indonesia is legally considered as the successor of the Netherlands. This, however, will be much more complicated as Indonesia officially recognised Australian sovereignty over the Reef in 1997 when they both agreed the EEZ boundaries. The reef clearly lies within the Australian side, south of the line agreed by Indonesia and Australia.

The fact that Indonesian People has been visiting and doing activities in the Reef for hundred of years has to be respected by Australia as our traditional fishing rights. If it is not possible for Indonesia to claim the reef, at least we have to fight for the traditional fishing rights so our fishermen can freely fish in the water around the reef.

If Tanoni's statement is right regarding his ownership of legal
evidences supporting the Netherlands claim over the reef, Indonesian government of course can renegotiate the agreement with Australia, provided that Australia wants to do so.

What else can Indonesian Government do?
Finalising the law regarding our archipelagic area is the most urgent step to do. FYI, we have not finalised the list of coordinates of our archipelagic baselines (PP No. 38/2002). Consequently the Indonesian archipelagic is not completely closed by our archipelagic baselines.

Other thing is to name all the islands and list all of them in our
internal law coupled with an up to date map as its supplement. After that, the government has to submit the coordinates and map to the UN. This will be treated as legal action/evidence supporting our sovereignty over the thousand of islands when, unexpectedly, another state claims an island within our territory.

Demikian komentar saya Pak Agus, mohon dikoreksi kalau ada yang salah. Senang sekali mendapat masukan dari Bapak. Saya sendiri bukan ahli hukum laut, hanya tahu sedikit karena kaitannya dengan riset saya

Terima kasih, salam kenal dan selamat tahun baru

PS. Please ignore the last paragraph if you don't understand Bahasa Indonesia