HARD WORK CONTINUES TO SETTLE MARITIME BORDERS
Damos Dumoli Agusman and Gulardi Nurbintoro[1]
Every 13 December we are
commemorating the day in 1957 when Prime Minister Djuanda proclaimed
Indonesia’s new maritime approach. The proclamation, later known as the Djuanda
Declaration, established that Indonesia has the lawful right to draw baselines
connecting the outermost points of its outermost islands and that the waters
within that baselines fall under Indonesia’s sovereignty.
The Declaration, obviously a
departure from the then well-established international rule of drawing
territorial sea from each island instead of an archipelago, was met with
worldwide protests. Conscious of the
winding journey in finding international recognition, Indonesia was actively
engaged in various multilateral and bilateral forums in order to ensure that
Indonesia’s proposal would be accepted.
One of the means was to sought
recognition through maritime boundary delimitation. In 1969, Indonesia and
Malaysia agreed to a continental shelf boundary in the Strait of Malacca and
the South China Sea. It took both countries only a couple of months of
negotiations until the agreement was reached.
The maritime boundary agreement opened the path to another bilateral
treaty in 1982 in which Malaysia firmly recognized Indonesia’s archipelagic
State concept.
Since the 1969 signing until now,
Indonesia remains committed to the settlement of maritime boundary delimitation
with its neighbors. History shows that the negotiations were not always smooth
and easy. Although the negotiation on continental shelf boundary with Malaysia
was resolved quickly, it was not the case for the maritime boundary in other
areas. Indonesia and Malaysia have yet to agree on a delimitation line in the
Ambalat area. Another example, it took 30 years for Indonesia and Vietnam to
reach an agreement on a continental shelf boundary which was signed in 2003.
Since 2010, both countries are still negotiating an Exclusive Economic Zone
boundary.
There are various factors that come
into play when determining whether the boundary can be concluded promptly or
not. First, the willingness of the States concerned. Regardless how eager
Indonesia is to conclude a maritime boundary, it will never happen when the
other State is not willing, and Indonesia must respect this. At the end of the
day, it takes two to tango.
Second, legal issues. Since the
adoption of UNCLOS in 1982, the international legal basis for delimiting a
maritime boundary mainly refers to the provisions of UNCLOS. The provision for
the delimitation of territorial sea is governed by article 15, while the
delimitation of the Exclusive Economic Zone and the continental shelf is
governed under articles 74 and 83 respectively.
While
there is usually no legal question with respect to the delimitation of
territorial sea, there remains an issue on the use of single boundary line for
the delimitation of Exclusive Economic Zone and the continental shelf.
Indonesia believes that separate lines should be drawn for delimiting each zone
as the continental shelf and Exclusive Economic Zone are two different regimes
under UNCLOS. Also, the International Court of Justice, while applying a single
boundary line since the Gulf of Maine
Case in 1984 until the most
recent delimitation case of 2018, Maritime
Delimitation in the Caribbean Sea and the Pacific Ocean between Costa Rica
and Nicaragua, had never stated that single boundary line is customary
international law. Indonesia’s position is not shared by all its neighboring
countries, hence the need to allocate some time to negotiate on this issue
alone.
Third,
technicalities issues. Once both countries agreed to commence the delimitation
negotiations, negotiators are left with the technical issues. This is the part
where both sides have to agree on the use of basepoints and baselines. The
process will then be followed by the negotiations on the proposed median line.
Arguments and counter-arguments will usually take place on why certain
basepoints and baselines should or should not be used. This will take some
time.
Fourth,
a border treaty to be agreed and signed will be a sacred document. It is not a
treaty in ordinary sense. Once it is concluded it must be forever and hardly to
be terminated even for a good reason. Under Vienna Convention 1969 on the Law
of Treaties has stipulated that even a fundamental change of circumstances may
not be invoked as a ground for terminating or withdrawing from a treaty that
establishes a boundary. To some extent it will make negotiators more cautious
and think more than twice in making any final words. Furthermore, whatever they
agree on the negotiation table should be made accountable to their respective
constituents especially Parliament. They need ample time to say yes.
But
one cannot deny that in terms of maritime boundary agreements, Indonesia is the
most prolific country in the Southeast Asian region. Overall, Indonesia has
entered into 18 delimitation agreements on various maritime zones with
Australia, India, Malaysia, Papua New Guinea, the Philippines, Singapore,
Thailand, and Vietnam. However, not all maritime zones have been yet delimited
with those countries. Also, no maritime boundaries have been delimited with
Palau and Timor Leste.
It is true that the pending boundaries is a
homework for the Indonesian Government. However, the public must understand
that delimitation is not a simple undertaking as it involves various factors.
The negotiators are always guided by the precautionary principle to ensure the
result of the negotiations will not be to the detriment of the Indonesian
people. At the same time, rest assured that Indonesian negotiators are keen and
committed to settle all maritime boundaries in order to accomplish the Djuanda
Declaration.
[1] Damos
Dumoli Agusman and Gulardi Nurbintoro earned their doctoral degree from Goethe
University of Frankfurt in Germany and the University of Virginia in the United
States, respectively. Both are Indonesia’s negotiators for maritime boundary
delimitation.
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