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Can Singapore conduct traditional military exercises in Indonesian waters?
During a bilateral negotiation between Indonesia and Singapore regarding Indonesia’s bid to take over a flight information region (FIR) recently, an unrelated issue emerged, namely Singapore’s right to conduct traditional military exercises in Indonesian archipelagic waters
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uring a bilateral negotiation between Indonesia and Singapore regarding Indonesia’s bid to take over a flight information region (FIR) recently, an unrelated issue emerged, namely Singapore’s right to conduct traditional military exercises in Indonesian archipelagic waters.
Though the issue is not new, this should have nothing to do with the negotiation of the FIR. This is related more to the pending Defense Cooperation Agreement (DCA) between Indonesia and Singapore. The agreement, which ended in 2003, was renewed and signed by the governments of both countries in 2007, but Indonesia’s House of Representatives refused to ratify it.
The pending agreement has a provision regarding Singapore’s right to conduct military exercises in Indonesian waters. Due to the House’s refusal to ratify the DCA, Indonesia argues that Singapore should stop conducting military exercises in certain parts of Indonesian waters.
Singapore insists that the right to hold military exercises in Indonesian waters is part of Singapore’s traditional right warranted under Article 51 (1) of the United Nations Convention on the Law of the Sea (UNCLOS). Hence, Singapore can exercise its right with or without the agreement.
Article 51 (1) of the UNCLOS 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 state in certain areas falling within archipelagic waters.
Moreover, it says the terms and conditions for the exercise of such rights and activities, 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.
Singapore insists the right to military exercise falls under the term “other legitimate activities”. Historical records by the Virginia UNCLOS Commentary briefly shows that Article 51 (1) was initially a joint proposal from Indonesia and Singapore.
At that time, Singapore wanted to propose that traditional military exercise be explicitly accommodated under Article 51 (1). However, the Indonesian delegation, led by ambassador Nugroho Wisnumurti, rejected it because the vague phrase “other legitimate activities” could open room for interpretation and negotiations.
During the negotiation of Article 51 (1), Indonesia said it might agree upon Singapore conducting military training with a specific bilateral agreement.
The question now is whether Singapore really has the right to exercise military training under the “legitimate activities” pending the ratification of the DCA.
Some legal scholars, such as James Kraska, contend that Article 51 (1) of the UNCLOS obliges an archipelagic state to respect the existing agreement, traditional fishing rights and other legitimate activities with or without bilateral agreement. The obligation is a condition to be recognized as an archipelagic state.
According to Bebeb Djundjunan, director of legal affairs and territorial treaties at the Indonesian Foreign Ministry, Singapore has on several occasions invoked the Indonesian obligations under Article 51 (1) to respect its traditional right to conduct military exercise, including during the negotiation of a military training area (MTA) in 1995.
However, Indonesia declined to use the article as a foundation of negotiation but agreed upon the MTA.
However, without a specific bilateral agreement between the two countries, uncertainty will persist and it may create more complex frictions in the future. The uncertainties include which specific areas could be claimed for traditional military exercise, what constitutes military exercise, what types of weaponry can be used and so forth. Those should be agreed upon in a bilateral treaty.
Efforts to prevent dubiety worked in the implementation of the traditional fishing rights of Malaysian fishers in Indonesian archipelagic waters.
A bilateral agreement has been concluded specifically to regulate the activities. What constitutes traditional fishers, where they can catch fish and what tools they can use have been agreed upon in the bilateral agreement so it can minimize disputes.
Indeed, historically speaking, there was a notion of traditional military exercise during the negotiation of the UNCLOS and some scholars argued that the obligations fell under “other legitimate activities” in Article 51 (1). However it is almost impossible to implement without a bilateral agreement.
In this regard, Indonesia should balance its interests between its international obligations under international law and the protection of its national interests and security.
It is therefore very much of Indonesia’s interest to conclude the pending DCA between Indonesia and Singapore. The agreement will allow Indonesia to carry out its international obligations under Article 51 (1) of the UNCLOS while creating limitations in terms of military exercise for the sake of national security.
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Researcher at the Center for Sustainable Ocean Policy, School of Law, University of Indonesia (UI), and fellow at the Center for Politics and Transnationalism at Policylab.
