W

hile Indonesia has managed to show leadership in paving the way toward a border dispute settlement between Thailand and Cambodia, it seems that Indonesia itself is not free from border issues.

On the day Indonesia was hosting a meeting between Thai and Cambodian delegations in Bogor, an incident took place in the border area of the Malacca Strait. The April 7th incident involved Malaysian-flagged vessels, Indonesian patrolling officials from the Ministry of Maritime Affairs and Fisheries and Malaysian helicopters.

An Indonesian patrol team identified two vessels allegedly fishing illegally in Indonesia’s exclusive economic zone (EEZ). When the two vessels were seized, Malaysian helicopters came along demanding that the two vessels be released. Convinced with what they were doing, the Indonesian officials went on and disregarded the demand.

The two vessels were brought to Belawan Port and the fishermen operating the vessels were detained. In Indonesia, as anticipated, the issue was highly debated and easily made it into news headlines.

Did the incident really take place in Indonesia’s EEZ? What about maritime boundaries between Indonesia and Malaysia in the Malacca Strait? What can be done to solve the issue? Before answering these questions, it is good to remember how coastal states are entitled to maritime areas and why they need to share the areas with neighbors.

The United Nations Convention on the Law of the Sea (UNCLOS) governs that coastal States such as Indonesia and Malaysia are entitled to several zones of maritime jurisdictions including territorial seas, contiguous zones, EEZs and continental shelves, the breadth of which are measured from baselines (usually coastline during low tide). In reality, it is impossible, however, to find a situation where a state can claim the full suit of maritime jurisdiction zones without dealing with its neighbors.

Due to their geographical configuration, many states are relatively close each other and overlapping maritime entitlement inevitably occurs. Coastal states need to share maritime areas through a delimitation process. Indonesia and Malaysia, too, need to draw maritime boundaries between themselves in the Malacca Strait.

In 1969, Indonesia and Malaysia established a seabed boundary (continental shelf) in the Malacca Strait. For some reason, this boundary line lies closer to Indonesia, not precisely in the middle of the two states. It is worth emphasizing that the line divides only the seabed, not the water column.

Accordingly, the division of the seabed and resources therein (oil, gas, sedentary species) has been made clear, but the water column and its resources (fish) remains unclear. It seems that the negotiation have yet to achieve significant progress. In conclusion, there has been no agreed-upon EEZ boundary in the Malacca Strait between Indonesia and Malaysia. Animation for the incident is available at www.borderstudies.info.

Even though an agreed-upon EEZ boundary is missing, Indonesia and Malaysia have unilaterally claimed EEZ boundaries. Indonesia proposes the use of a median line, while Malaysia suggests the use of the 1969 seabed boundary as an EEZ boundary, which lies closer to Indonesia. Considering that UNCLOS requires parties in question to achieve an “equitable solution” in delimiting EEZs, one might say that Indonesia’s proposal is more acceptable. Even though a median line is not necessarily “equitable”, it can certainly serve as an equitable solution in the absence of any special circumstance.

The two different proposals of an EEZ boundary in the Malacca Strait generates an area of EEZ claimed by both parties, an overlapping claim. Unsurprisingly, each state refers to the overlapping area as its own and enforces laws based on that unilateral claim.

If Malaysia’s fishermen enter the area, Indonesian officials will undoubtedly consider it as an infringement and vice versa. This is, in fact, what happed in the Malacca Strait on April 7, 2011.

What the Indonesian patrol team did in the Malacca Strait was correct according to Indonesia’s unilateral position. Likewise, Malaysian helicopters were also performing their duty based on the assignment given pursuant to Malaysia’s unilateral claim.

It was also anticipated that each government would state that “the incident took place in our EEZ,” as this is what a state will normally do to strengthen its position. This is critical to show consistency that will benefit a state at the negotiating table. Unfortunately, this kind of statement and political stance can obscure people’s view of the real issue.

What to do next? First and foremost, Indonesia and Malaysia need to accelerate the delimitation process. As Foreign Minister Marty Natalegawa once asserted, Indonesia is ready to negotiate with Malaysia at anytime.

The incident should be a wake-up call for Malaysia to work hand in hand with Indonesia, swiftly but carefully. And not only in the Malacca Strait, as they have yet to finalize delimitation in the Strait of Singapore (waters off Tanjung Berakit), South China Sea and Sulawesi Sea (Ambalat). It is worth noting, however, that settling maritime boundaries is by no mean an easy task.

Second, as highlighted by Foreign Minister Anifah Aman of Malaysia, both states need to translate high-level consensus in dealing with fishing activities in the overlapping areas into technical procedures in the field. Each party has to make sure that patrolling teams in the field perform their job in accordance with an agreement that has been previously achieved in a higher level of authority.

This can also lead to an option of joint-patrol between Indonesia and Malaysia. Undoubtedly, this will require both parties to acknowledge that the area is in fact an overlapping area. In short, they have to start with “agreeing to disagree” on each other’s claims.

The third option is to sterilize the disputed area from any activities conducted by any parties for a certain period of time. Meanwhile both parties need to establish confidence-building measure before stepping into delimitation process. Options are there; what required is willingness from both sides for a solution. Whatever the approach is, Indonesia and Malaysia should be aimed at reaching a peaceful resolution.

The writer is a lecturer at the Department of Geodetic Engineering, Gadjah Mada University. His research interest is in technical/geodetic and legal aspects of maritime delimitation. This is his personal opinion.