I Made Andi Arsana
The news in ANTARA on 26 September 2005 was about the concerns of North Sumatra’s FPPP provincial legislative councils regarding a website promoting Pulau Berhala as one of Malaysia’s tourist destinations. This was addressed by Fadly Nurzal, a representative of FPPP. When reading this, Sipadan and Ligitan come in mind. The two islands have been secured by Malaysia as the International Court of Justice (ICJ) decided to award their sovereignty to Malaysia in 2002. Does Malaysia push its luck to secure one by one small islands in the boundary area? Will Pulau Berhala repeat the history of Sipadan and Ligitan? Let’s see what happens!
As far as I am concerned, there are at least three different islands called Berhala. The first island is the one referred by Nurzal in Malacca Strait, around 48 Nautical Miles from Port Belawan. The second Berhala is in Berhala Strait close to Riau Archipelago that has been a source of conflict between Jambi and Riau for such a long time. The last one is close to Sandakan, North Borneo, which has been a tourist destination and is fabulous for diving. The second Berhala is clearly Indonesia’s, while the third one is definitely Malaysia’s.
Unfortunately ANTARA did not clearly mention the website referred by Nurzal. Therefore it is not a hundred percent clear which Berhala Malaysia promotes as its tourist destination. If the island it promotes is the one close to Sandakan, Nurzal must have been careless in expressing opinion. Hopefully that is not the case.
If Pulau Berhala in question is the one in Malacca Strait, then it will be a different story. Indonesian government has to pay extra attention as this may lead to the loss of an island. Pulau Berhala, as stated by the Hidro-Oceanographic Office of the Indonesian Navy (Dishidros), is one of the 12 small islands which are critical due to their position in the international boundary area.
The other eleven islands are Pulau Rondo (Indonesia-India); Pulau Nipa (Indonesia-Singapore); Pulau Sekatuang (Indonesia-Vietnam); Pulau Marore, Pulau Mianggas and Pulau Marampit (Indonesia-Philippine); Pulau Batek (Indonesia-Timor Leste); Pulau Dana (Indonesia-Australia); Pulau Fani, Pulau Fanildo, and Pulau Brass (Indonesia-Palau).
Let’s look closely to Pulau Berhala in Malacca Strait and review the maritime boundary agreement between Indonesia and Malaysia.
In 1969, Indonesia and Malaysia entered into an Agreement dividing the continental shelf between the two countries in Malacca Strait and ratifications were exchanged on 7 November 1969. Ten points are agreed as the turning points of the boundary line.
Some opined that the agreement is not an equitable solution as Malaysia applied straight baseline connecting its outermost islands while it is not an archipelagic state. This causes the boundary line lies closer to the Indonesian side and is considered as inequitable. However, Indonesia and Malaysia have signed the agreement and it has been binding for both countries for such a long time. Now, it is not important to discuss how the boundary has been achieved but to obey the agreement, unless the boundary needs renegotiation.
Unlike the uncertainty of Sipadan and Ligitan as there has been no definite maritime boundary in Celebes Sea, the continental shelf boundary in Malacca strait should have made the status of Pulau Berhala clear. Based on the 1969 agreement, the International Boundary Study of the Department of State, US analyzed the boundary and found that Pulau Berhala belonged to Indonesia. This was clear in the analysis of the study, especially in the table of characteristics of the border points (The Geographer, 1970).
Experiences tell that the arguments of chain of title based on the history are often not strong enough to prove the ownership an island. Indonesia or Malaysia could refer the history to prove that an island belongs to it but often it is hard to agree. This is because there is no dateline since when such history should be considered. This was also the case when the ICJ decided the case of Sipadan and Ligitan by considering the principle of effectivités. Historic arguments proposed by Indonesia and Malaysia could not convince the court and were rejected. The principle of effectivités looks more to the effective legal action done by countries in question to the islands. The court found that Malaysia, proceeded by the Great Britain, have done much more to maintain Sipadan and Ligitan Islands. Therefore the “sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia”
In the case of Pulau Berhala, we will also assess the principle of effectivités and see how it goes.
In 1984, Indonesian Government built a lighthouse in the Island and since has been maintaining the lighthouse by continually assigning lighthouse attendants. This can be considered as a legal action proving that Indonesia has done the appropriate things as the owner of Pulau Berhala. Maintenance of the lighthouse requires Indonesian Government to take care the environment; otherwise the lighthouse will not be able to function properly. This also proves the role of the Indonesian Government in Pulau Berhala fulfilling the principle of effectivités. Therefore, based on the principle of effectivités, Indonesia deserves to be the legal owner of Pulau Berhala.
In a technical perspective, a spatial assessment needs to be done by plotting the coordinate of Pulau Berhala together with the border lines in an appropriate-scaled nautical chart. By plotting the location of Pulau Berhala and the boundary line in a chart, it will be clear whether Pulau Berhala lies in the side of Indonesia or Malaysia.
We will see how Indonesia and Malaysia deal with this kind of problem. It is very important for all citizens to clearly understand the problem and support the governments to do their best. Instead of being over-reactive, let’s be calm and patient.