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Jakarta Post

Hard work continues to settle maritime borders

  • Damos Dumoli Agusman and Gulardi Nurbintoro

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Jakarta   /   Thu, December 13, 2018   /   10:31 am
Hard work continues to settle maritime borders The Malacca Strait is a narrow 890-kilometer stretch of water between the Malay Peninsula and Sumatra. In 1969, Indonesia and Malaysia agreed to a continental shelf boundary in the Strait of Malacca and the South China Sea. (Shutterstock/File)

Every Dec. 13 we commemorate the day in 1957 when then-prime minister Djuanda Kartawidjaja proclaimed Indonesia’s new maritime approach. The proclamation, which later became 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 those baselines fall under Indonesia’s sovereignty.

The Declaration, obviously a departure from the well-established international rule of drawing territorial seas from each island instead of an archipelago, was met with worldwide protest. 

Conscious of the winding journey in securing international recognition, Indonesia became actively engaged in various multilateral and bilateral forums to ensure that Indonesia’s proposal would be accepted.

One of the means was to seek 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.

Ever since the 1969 agreement, Indonesia remains committed to the settlement of maritime boundary delimitation with its neighbors. History shows that negotiations were not always smooth and easy. 

Although the negotiation on the continental shelf boundary with Malaysia was resolved quickly, that was not the case in other areas. Indonesia and Malaysia have yet to agree on a delimitation line in the Ambalat area. 

And 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 (EEZ) boundary.

Various factors come into play when determining whether a boundary can be concluded promptly or not. The first is the willingness of the states concerned in coming to the negotiation table. 

Regardless of how eager Indonesia is to conclude a maritime boundary, it will never happen if the other state is not willing, and Indonesia must respect this. At the end of the day, it takes two to tango. 

The second factor is legal issues. Since the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) in 1982, its provisions became the international legal basis for delimiting maritime boundaries. For instance, delimitation of territorial seas is governed by Article 15.

While there is usually no legal question on delimitation of territorial seas, there remains an issue on the use of a single boundary line for the delimitation of EEZs and continental shelves. Indonesia believes separate lines should be drawn for delimiting each zone, as the continental shelf and EEZs are two different regimes under UNCLOS. 

Also, while the International Court of Justice has applied a single boundary line since the Gulf of Maine case in 1984 until the most recent delimitation case of 2018, the maritime delimitation in the Caribbean Sea and the Pacific Ocean between Costa Rica and Nicaragua, the Court had never stated that the 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 this issue alone. 

The third factor pertains to technicalities. Once both countries agree to commence talks on delimitation, negotiators are left with technical issues. This is the part where both sides have to agree on the use of basepoints and baselines. 

Then negotiations follow 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 the ordinary sense. Once it is concluded, it will be forever effective, and will be very hard to terminate, even for a good reason. 

The Vienna Convention of 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. 

This makes negotiators think more than twice about the final drafts. Furthermore, whatever they agree at the negotiation table should be made accountable to their respective constituents, especially their respective parliaments. Therefore, all sides need ample time to say yes.

Nevertheless, in terms of maritime boundary agreements, Indonesia is the most active country in Southeast Asia. Overall, Indonesia has entered into 18 delimitation agreements on maritime zones with Australia, India, Malaysia, Papua New Guinea, the Philippines, Singapore, Thailand and Vietnam. 

However, not all maritime zones have been delimited yet with those countries. Also, no maritime boundaries have been delimited with Palau and Timor Leste.

Pending boundaries are indeed big tasks for Indonesia’s government. However, delimitation involves various factors. The negotiators are always guided by the precautionary principle to ensure negotiation results will not be to the detriment of the Indonesian people. 

Rest assured that Indonesian negotiators are keen and committed to settle all maritime boundaries in order to accomplish the Djuanda Declaration.

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Damos Dumoli Agusman is director general for law and international treaties at the Foreign Ministry and Gulardi Nurbintoro is an official at the ministry’s legal department. Both are Indonesia’s negotiators for maritime boundary delimitation.

Disclaimer: The opinions expressed in this article are those of the author and do not reflect the official stance of The Jakarta Post.