Tensions arose afresh between Jakarta and Beijing following a series of incidents in the North Natuna Sea last December. China’s fishing activities in the seas north of the Natuna Islands, protected by that country’s coast guard, were deemed a violation of Indonesia’s sovereign rights in the natural resource-rich maritime territory.
The friction was unsurprising as China has insisted on its maritime claim covering almost the entire South China Sea, known as the “nine-dash line”, which overlaps Indonesia’s exclusive economic zone (EEZ) in the northern parts of the Natuna Sea.
Under the United Nations Convention on the Law of the Sea (UNCLOS), to which China and Indonesia are parties, there is no such thing as the “nine-dash line”. Moreover, the July 2016 Permanent Court of Arbitration ruling on Philippines v. China stipulated that the “nine-dash line” had no basis under international law.
However, there are misconceptions about traditional fishing rights under UNCLOS in the article by Lei Xiaolu of Wuhan University that appeared in The Jakarta Post on March 11. She argues that China has traditional fishing rights in waters of the Natuna Islands.
The article wrongly analyzes the legal concept of traditional fishing rights under UNCLOS on least three accounts.
First, the concept of traditional fishing rights is introduced under Article 51 of UNCLOS in the context of archipelagic waters. It says an “archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring States in certain areas falling within archipelagic waters.”
This provision immediately nullifies China’s claim of traditional fishing rights in the waters around the Natuna Islands, because China is not an immediately adjacent neighbor of Indonesia. It is also because the southernmost parts of Chinese claims in the Spratly Islands, lie around 1,100 kilometers from the Natuna Islands, which is far beyond the maximum limit of an EEZ.
Second, Article 51 of UNCLOS also stipulates that the “terms and conditions for the exercise of such traditional fishing rights, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them”. In the case of China’s claim of traditional fishing rights, there is no bilateral agreement between Indonesia and China, and it seems this will never happen because China is not Indonesia’s immediate neighbor.
Traditional fishing rights are not a new concept for Indonesia. Indonesia has signed at least two bilateral agreements regarding traditional fishing rights with its direct neighbors.
Indonesia and Malaysia entered into a bilateral agreement in 1982 called the Agreement on the Regime Laws of the State Archipelago and Malaysia’s Rights in the Territorial Sea and Waters. Indeed, the bilateral agreement between Indonesia and Malaysia is the right way of regulating traditional fishing rights mandated under Article 51 of UNCLOS.
Even before Indonesia was recognized as an archipelagic state, Malaysian fishermen already fished in Indonesian waters. Therefore, Indonesia agreed to grant traditional fishing rights to Malaysia under the bilateral agreement.
Third, in defending China’s traditional fishing rights in the North Natuna Sea, Prof. Lei also argues that Article 74(3) of UNCLOS requires that “coastal states shall make every effort to achieve a provisional arrangement pending the maritime delimitation agreement”. Again, this provision has no relevance in the case between Indonesia and China, as the foreign ministries of the two countries have confirmed they have no pending maritime boundary delimitations. Therefore there is no need to create such a provisional agreement between Indonesia and China.
Implementation of Article 74(3) is demonstrated by, for example, an agreement between Indonesia and Malaysia regarding the Common Guidelines Concerning Treatment of Fishermen by Maritime Law Enforcement Agencies.
Under this agreement, the two states agree on what kind of measures can be taken by both national authorities with respect to any law enforcement in the undelimited area between Indonesia and Malaysia.
Indeed, it is Indonesia’s right to refuse to negotiate any maritime boundary delimitation with China regarding the North Natuna Sea, although there are different opinions among Jakarta officials regarding how to respond to China in the North Natuna Sea issue.
Coordinating Maritime and Investment Minister Luhut Pandjaitan, for instance, has pleaded for calm, otherwise Chinese investment in Indonesia might be harmed. However, most officials, as well as public opinion, tend to support a strong response to China.
Clearly, China’s traditional fishing rights in Indonesia’s EEZ surrounding the Natuna Islands is misleading and constitutes a misconception.
Lecturer in international maritime law and senior researcher at the Center for Sustainable Ocean Policy at the School of Law, University of Indonesia, and fellow at the Center for Politics and Transnationalism at Policylab. This article was initially written for the East Asia Forum.
Disclaimer: The opinions expressed in this article are those of the author and do not reflect the official stance of The Jakarta Post.