I Made Andi Arsana1
Malaysia’s decision to award a concession for oil exploitation and management in the Ambalat area to the Royal Dutch Shell and other company last February raised reactive response from Indonesian government and people. The decision indicated that Malaysia was definite that Ambalat is part of its territory. Meanwhile, Indonesia is also confident that the area is its. This is supported by historical facts that Ambalat, previously, was part of Bulungan Sultanate, which, since Indonesian Independence has been part of Indonesia. This opinion is known as the chain of title argument.
Reactive responses from Indonesian government and people were understandable since Indonesia is not yet recovered from trauma when International Court of Justice decided to awarded Sipadan and Ligitan to Malaysia after a long complicated legal process. Apparently, Malaysia is trying to push its luck by claiming another area; Ambalat. That is what most Indonesian people think. Even though, historically, these two islands were also part of Bulungan Sultanate, at last Malaysia won the case and became the legal owner of them. The decision by the ICJ was based on (one of them) the argument that Indonesia failed to prove that it did enough to maintain the environment of those two islands (www.media-indonesia.com, 4 March 2005). Will the oily-rich Ambalat suffer the same and follow its two “big brothers”, Sipadan and Ligitan? It seems to me that Indonesian Government has to fight extra strongly and extremely carefully dealing with this particular problem.
Indonesia-Malaysia Boundary and the 1891 Convention
To resolve the overlapping claims, it is necessary to look back to the series of negotiations that have been done between the two States, in relation with International Boundary at Borneo Island which was actually started in 1974 (according to Indonesia’s Department of Foreign Affairs). It is well-known that Indonesia-Malaysia Boundary located in the Celebes Sea, where Ambalat located, has not been fully established. The incompleteness has actually given one loss to Indonesia, when Malaysia won Sipadan and Ligitan.
Should an explicit agreement about Ambalat ownership has not been achieved, it is necessary to reconsider the 1891 Convention between The Great Britain ant The Netherlands, the two countries governed Borneo during the colonial era. This convention, for sure, is one of the main legal references in defining the boundary between Indonesia and Malaysia in Borneo. An intensive investigation needs to be done to confirm whether the convention explicitly governs the ownership of Ambalat. This is, analogically, similar to the use of Treaty 1904 for the delimitation of Indonesia and Timor Leste land boundary.
As informed by some news (e.g. detik.com, 02-03-05, kompas.com, 08-03-05), Malaysia uses its 1979 chart to claim Ambalat. With regards to this chart, Prescott (2004), an international maritime boundary expert, stated that the chart also contains a continental shelf boundary claim, where the claim “lies beyond the median line along its entire length. The maximum deviation in two sectors is about 5 nm. It appears that in constructing this seabed claim Malaysia has undervalued some legitimate Indonesian baseline points.”
Despite the above view, it is necessary to systematically investigate how a chart can be recognized and used as a legal basis to claim certain area. Clive Schofield, a former director of the International Boundary Research Unit (IBRU) said that “certain charts are supposed to be deposited with the UN (e.g. charts showing certain types of baselines and maritime boundaries). However, in this case one State issuing a chart can’t be binding on another State unless that State agrees so. There is the possibility that over time a State may acquiesce to a particular situation but that doesn’t, at first glance, appear to be the case here.” This implies that the use of 1979 chart by Malaysia must be aligned with acceptable scientific and legal considerations. If the chart fulfils only partial needs and interest, disregarding other State’s sovereignty, it cannot be used that way.
Unfortunately, as one of the main legal references, the 1891 Convention apparently will not help much in resolving the problem. Similar to Sipadan and Ligitan, the convention seemingly does not firmly govern the ownership of Ambalat. This is because the 1891 Convention only states that the Great Britain and the Netherlands agreed to admit the boundary line that reaches the east coast of Borneo. Article IV of the Convention stipulates, “allocation of the adjacent area shall follow the line of 4° 10’ latitude, proceeding in an easterly direction across the Island of Sebatik.” It does not further explain the continuation of the line in question. This, of course, does not help as Ambalat, just like Sipadan and Ligitan, situates eastern of the end point of the line. If the line was simply elongated eastward, it is clear that Ambalat will be part of Indonesian territory. However, elongating the line without a clear and strong legal basis cannot be easily accepted.
With regards to the above view, a bilateral diplomacy is apparently the most probable recourse. Even though submitting such case to an international body, e.g. ICJ, is a good alternative to some extents, it is not always recommended. Base on Prescott’s ideas, there are three reasons why this is not preferable. First, such case always seem to last at least 4-5 years, meanwhile continued bilateral negotiations might be productive. Besides, this will also cost a huge amount of money. Hasan Wirajuda admitted that Indonesia spent approximately Rp 16 billions for the case of Sipadan and Ligitan (Tempo, 23 December 2002). Second, sometimes Courts produce surprising results. The Gulf of Fonseca judgment was such a case. First it found that historical bays could be shared by two or more states. Second it allowed, Honduras, which is clearly locked within the Gulf by El Salvador and Nicaragua, to claim seas and seabed in the Pacific Ocean. Third sometimes the Court’s reasons for making a decision are obscure.
The Next Steps
Indonesian Government should take some significant learning experiences from this case. The case should have encouraged government to realize the importance and urgency of international boundary delimitation, maritime boundary, in this case. This is not only with Malaysia but also with all neighbouring States. Indonesia currently has 10 incomplete maritime boundaries with neighbouring States. They are with Malaysia, Philippine, Palau, India, Thailand, Timor Leste, Singapore, Papua New Guinea, Australia, and Vietnam. It is understandable that it is such an overloaded period since Indonesia is currently facing some huge problems, including tsunami and other natural hazards that require intensive attentions. This is the time that government is really challenged to keep paying attention to such an important issue i.e. international boundary, while at the same time bombarded with unexpected natural hazards.
Another urgent step is to list small islets all over Indonesian Archipelago, and to name (Toponim) every single islet. This, actually, has been conducted by the Department of Marine and Fisheries since quite a long time. This apparently needs more, “energy” to speed up the process. If Indonesia fails to do this, its thousands of islands and islets will be gone one by one, claimed by other states without any significant defence.
It is worth noting that having only history and legend is not enough to investigate ownership on an area. The loss of Sipadan and Ligitan is one of the cases. It is required that Indonesia has legal evidence indicating it has administered the territory in question. According to Schofield, “many ways to do this but, for example, collecting taxes from the population living there, issuing domestic legislation, etc”. The development of tourism resorts in Sipadan and Ligitan is one of the factors that would the lead Malaysia into a victory over Indonesia, beside the issue of environmental management.
It does not matter what technical procedure Indonesia and Malaysia will employ to resolve the problems, both have to respect each other by attempting peaceful ways in negotiation. A good understanding in scientific, technical and legal aspect on both sides, will most probably reduce provocative decisions. This must also be understood by ordinary people in both States, to be able to support the establishment of a fair resolution.
This writing will not be here without significant help from some colleagues. I personally acknowledge Clive Schofield and Karin Johnson for assistance they provide.
1A researcher in the Centre for Boundary Research UGM-Bakosurtanal, currently a research student at UNSW, Sydney, Australia