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n Jan. 27, Indonesia and Malaysia signed a Memorandum of Understanding (MoU) in respect to the common guidelines concerning treatment of fishermen by maritime law enforcement agencies of the two countries.

It was signed in Bali, where the Indonesian government was represented by the Indonesia Maritime Security Coordinating Board (Bakorkamla) and the National Security Council. The Prime Minister’s Department represented Malaysia.

It is not uncommon to discover fishermen are captured or chased away by patrols when fishing around border areas. Interestingly, fishermen are often captured for allegedly crossing the border, even though no maritime boundaries have been in place. The capture usually takes place in a border area claimed by both countries, usually referred to as overlapping area. In this case, no agreed maritime boundaries are in place and border crossing is usually unilaterally-justified.

Without a provisional agreement on how to treat fishermen operating in overlapping areas, fishermen are often captured and disadvantaged. One of the latest examples is the imprisonment of 13 Indonesian fishermen for allegedly “violating border law” in the Malacca Strait. The fishermen were recently released after a six-month imprisonment.

The common guidelines signed by Indonesia and Malaysia may be seen as good news for fishermen operating around the borders. It governs the agreed activities in dealing with fishing issues between Indonesia and Malaysia for the wellbeing of fishermen.

It consists of 11 articles dealing with objectives, principles, scope of activities, agencies, implementation areas, participation of third parties, confidentiality, suspension, revision/amendment, dispute settlement and entry into force/duration/termination.

Article 5, for example, states, that the rules shall be applied in “all unresolved maritime boundary areas” between Indonesia and Malaysia. These include the Malacca Strait, the South China Sea, the Singapore Strait and the Sulawesi Sea.

In principle, the common guidelines are established to maintain “good relations, close cooperation and mutual understanding” between Indonesia and Malaysia and to avoid the use of force by enforcement agencies.

It is also without prejudice to existing and pending bilateral agreements on maritime boundaries. In other words, it is not to dictate and influence future maritime-boundary negotiations between Indonesia and Malaysia. Another important provision is to treat fishermen from both countries impartially.

The most interesting part of the common guidelines in relation to fishermen is Article 3 concerning the scope of activities.

It states that both parties agree to conduct preventive measures and “inspection and request to leave the area” for all fishing boats in a case of encroachment. In other words, if fishermen from Malaysia enter an overlapping area, they should not be captured but, instead, be told to return to Malaysia.

This is also equally applicable to Indonesian fishermen. This implies that Indonesia and Malaysia have to first recognize each party’s unilateral claim to agree upon an overlapping area. This might generate another issue, as a country does not usually recognize its neighbor’s unilateral claim in order to strengthen its own claim.

Recognizing another country’s claim may be viewed as an action to legitimatize the claim, which in turn weakens its own position in future delimitation negotiations. However, both must have been aware that such “recognition” should not complicate the finalization of maritime delimitation in the future.

With regards to language, the MoU is officially produced in English. It is however interesting to observe the Indonesian translation of the MoU circulating in the Internet, which contains some inaccuracies. Apparently the translation is unofficial but it is possible that it could be used by relevant parties that have issues with English.

In Article 2, for example, the term “maritime or territorial claims” is translated as “klaim maritim teritorial” which is obviously incorrect. The Indonesian version literally means “claim of territorial maritime”, which does not exist in the context of the law of the sea or international law. It will be much better if the translation is “klaim atas kawasan maritim maupun wilayah darat” or something similar.

There are also some other relatively poor translations such as “impartial treatment should be extended to the fishermen in accordance with their fundamental human rights”, which is translated into “perlakuan imparsial harus diperluas ke para nelayan sesuai dengan hak-hak dasar asasi manusia”. This may be misleading.

Fortunately, the Indonesian translation is not the one that prevails since the English version shall be the authentic text.

However, this poor translation can be misunderstood by Indonesians, especially those with limited knowledge of English. Therefore, a better Indonesian translation of the MoU is essential.

Apart from some aspects that can be perfected, the MoU is to guarantee the better treatment of fishermen from Indonesia and Malaysia operating in border areas, especially where maritime boundaries have yet to settle. Provided that the implementation is in accordance with the common guidelines, it is fair to expect that no more fishermen will be unfairly-treated in Indonesia-Malaysia maritime-boundary areas in the future.

The next step is to make sure the common guidelines are properly implemented. It is mainly the responsibility of respective coordinating agencies and their supporting stakeholders in Indonesia and Malaysia.

The common guidelines are adequate to be general guidance for both agencies, but it certainly requires more detailed standard operating procedures (SOP).

The SOP can also contain scenarios of possible incidents and options on how to deal with each scenario. To enhance the capacity and coordinating functions of relevant agencies, a series of joint training sessions are also essential.

The MoU is already good news for fishermen operating in border areas. But it certainly requires supporting instruments for proper implementation so that the good news can even be better. Otherwise, it will be considered as just another MoU without adequate contribution to the wellbeing of fishermen around the borders.