Several incidents, including the ramming by Vietnamese fisheries resources surveillance ship KN-213 of Indonesian Navy corvette Tjiptadi 381 in the maritime grey area late in April, have overshadowed bilateral relations between the two countries.

Both President Jokowi and PM Nguyen were surely unhappy with the incidents considering the efforts to retain vibrant bilateral relations through the signing of, among other agreements, the Joint Statement for Strengthening the Strategic Partnership in 2018, Plan of Action for the Implementation of the Strategic Partnership (2019-2023) in 2018 and the Joint Communique on Voluntary International Cooperation to Combat Illegal, Unreported and Unregulated (IUU) Fishing to Promote Sustainable Fisheries Governance in 2018.

Fish poaching remains a thorn in the flesh of the Jakarta-Ho Chi Minh relationship. Between 2014 and February 2019, Indonesia sank 294 Vietnamese-flagged fishing vessels for illegal fishing.

Maritime boundary delimitation with Vietnam turns out to be challenging for Indonesia. It took the two parties approximately 25 years to ink the Agreement on the Delimitation of the Continental Shelf Boundary in 2003.

It looked possible for Indonesia to negotiate the continental shelf boundary and Exclusive Economic Zone (EEZ) as a package deal, but the hydrocarbon resources were perceived to be of particular relevance as the seabed area around Natuna Island is close to the continental shelf delimited area and has proven to be oil- and gas-rich. Seabed delimitation was therefore considered more urgent.

The different perceptions in projecting baselines resulted in overlapping claims between Indonesia and Vietnam. Indonesia’s baseline to project its claim over the EEZ “moves forward” from the agreed continental shelf. On the other side, Vietnam claims its projection over the EEZ at the same line as the agreed continental shelf by using straight baselines, in which the conditions to draw are set in Article 7 of the United Nations Convention on the Law of the Sea (UNCLOS).

The overlapping claims and the delimitation of maritime boundaries for some countries can lead to negotiation for cooperative management mechanisms in the form of a maritime joint development zone to manage and exploit marine resources offshore temporarily until the maritime delimitation can be reached.

Under UNCLOS, such a joint maritime arrangement is made possible in the EEZ (Article 74 (3)) and continental shelf (Article 83 (3)), where the pending maritime delimitation agreement has come into existence. As an interim measure, the state shall make every effort to enter into provisional arrangements of a practical nature in a spirit of understanding and cooperation. The arrangement shall be without prejudice to the final delimitation.

The provisions put the onus on the parties of UNCLOS, including Indonesia and Vietnam, to enter into a provisional arrangement. The technical teams from both countries bear no easy task, and it is a big responsibility to sit together to formulate the interim measures.

This arrangement carries aspects of international relations and international law. For the former, it is a means of conflict prevention offering a win-win solution. This cooperative approach is taken to distinguish the potential confrontational quest for a geographically precise and legally final and binding conventional boundary delimitation.

The joint development can also serve as a confidence-building measure, paving the way for a more seamless boundary delimitation between Indonesia and Vietnam.

Another advantage is an alternative to settle the stalemate. When facing a deadlock on maritime boundary delimitation, the parties in dispute can opt to take this cooperative arrangement.

For the latter, it should follow the principles of neutrality in sovereignty, flexibility and good faith. The sovereign neutrality approach in this regard is aimed at maintaining the existing claims by including “without prejudice” clauses. The Treaty on Certain Maritime Arrangements in the Timor Sea that Australia and Timor-Leste signed in 2006 is a good example.

In some agreements, the provisional arrangement offers flexibility in terms of spatial and functionality. From a spatial point of view, it is not necessary to straddle the negotiated boundary line as it can be even or unequal. Functionally, it may focus on hydrocarbon, fisheries, joint research or cover those three issues. The good faith principle should apply when the agreement is concluded.

The upcoming negotiation on the possible provisional arrangement, pending maritime delimitation treaty, between Indonesia and Vietnam is likely to pay attention to the management of marine living resources as the overlapping claims occur in the water column. The significant role of the Maritime Affairs and Fisheries Ministry is necessary to ensure that the joint development zone would serve to ensure that the fishing vessels of both countries follow sustainable fishing practices such as prohibiting IUU fishing, including destructive fishing gear.

Joint research plays a key role in revealing the recommendations on the fish stocks and allowable catch to prevent overexploitation. This joint team may determine the open and closed seasons for fishing in areas determined to be low on fish stocks or environmentally threatened. Drug trafficking should be banned, and the procedures of hot pursuit should be provisioned and applied in the undelimited area.

The most difficult part would be negotiating the divergent regulations of the two countries into one agreement. However, it could be anticipated by following those three principles and having an awareness that those two countries have inked important bilateral commitments.

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The writer holds a PhD from ANCORS, University of Wollongong and was a United Nations Nippon fellow 2016 at the UN Division on Ocean Affairs and the Law of the Sea.

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