Just this time around, instead of two trespassing Chinese vessels, as many as 63 trespassing vessels have been spotted across 30 locations within Indonesia’s waters, backed by the presence of Chinese coast guard ships. This encroachment is not a matter that can — or should — be taken lightly.

Beijing claims that these South China Sea waters are its “traditional fishing grounds” and that the vessels are exercising their “legal and legitimate” rights. Jakarta insists contrarily that it enjoys exclusive and untrammeled sovereign rights and jurisdiction over these North Natuna Sea waters and that the Chinese vessels are engaged in illegal poaching.

Jakarta is prima facie correct to assert that Beijing cannot enjoy any “historic rights” — traditional fishing rights being a form of “historic right” — within the Natuna’s exclusive economic zone (EEZ). The international tribunal in the Philippines versus China case judged that such rights were superseded in the EEZ of a foreign coastal state with the entry into force in November 1994 of the United Nations Convention on the Law of the Sea (UNCLOS).

On the other hand, the matter is not as clear-cut as many commentators would have us believe. Far from being preposterous, the concept of "historic rights" (including traditional fishing rights) and "traditional fishing grounds" sits comfortably within the four corners of international maritime law.

As the tribunal in Philippines vs China had itself observed, such rights belong to and are governed by the “other rules of international law” that are preserved by the UNCLOS. So long as these traditional fishing rights “are exercised over a long period of time without interruption or opposition", they can override conceptions of sovereignty, be exercised nonexclusively by artisanal fishermen of that vested foreign state, and do not require the consent of the coastal state for their exercise.

It was on this basis that the tribunal judged the territorial sea of the Scarborough Shoal, where China is the coastal state just as Indonesia is in the Natunas, to be the “traditional fishing ground” for Filipino artisanal fishermen. Their access as a matter of right to these fishing grounds was not contingent on China’s consent — although they do have to defer to Beijing’s regulatory prerogatives in these Scarborough waters.

Where China’s current practices in the Natunas departs from the tribunal’s ruling is that the latter had circumscribed this traditional fishing right to the territorial seas of the Scarborough Shoal. The coastal state's EEZ were deemed out-of-bounds for the exercise of this historic right.

But even this territorial sea/EEZ zonal distinction is not settled law. In two notable cases since the entry into force of the UNCLOS, international tribunals have ruled otherwise.

In Mauritius vs United Kingdom, the court observed that the “other rules of international law” — which governs traditional fishing rights and is preserved by the UNCLOS — apply “for all intents and purposes equivalently” across the territorial seas and the exclusive economic zone. The court in Eritrea vs Yemen went even further, judging that the “traditional fishing regime [… ] was not qualified by the maritime zones specified under the [UNCLOS] […] and operates throughout those waters beyond the territorial waters of each of the Parties”.

A future court may yet pare back the Philippines vs China distinction between the territorial sea and the EEZ insofar as the exercise of this traditional fishing right is concerned. China will be reluctant to cede this facility during the interim, if at all.

So what does this all amount to and where does Jakarta go from here?

First, the face-off must be resolved and the encroachment reversed expeditiously — and peacefully. The situation cannot be left to linger. Diplomacy and deterrence are of the essence.

Next, as unwelcome as the situation is, undue alarmism is neither helpful nor necessary. It is instructive to be attentive to the inferred claims that Beijing is not making in this instance. It is not challenging the territorial dispensation of the Natuna Islands. It is not contesting Indonesia’s sovereignty in the Natuna’s territorial sea. It is not claiming sovereign rights and jurisdiction in the Natuna’s EEZ, be it for commercial fisheries or oil and gas development purposes. It has, in fact, never challenged Jakarta’s hydrocarbon rights in these waters, unlike the case in Manila’s and Hanoi’s EEZ — which had, in turn, spurred the judges in Philippines vs China to strike down Beijing’s infamous "nine-dash line" because it constituted, in their view, an infringing exclusive claim to sovereign rights and jurisdiction.

Finally, even this limited and nonexclusively exercised traditional fishing rights claim might be too much for Jakarta to countenance, particularly in light of the rampant poaching by many states in its waters. It would be fully within its rights to reject it.

On the other hand, there is little harm in sitting across the table and thrashing the issue out with Chinese counterparts. Creative solutions could be on the anvil. In exchange for a nominal annual quota for its artisanal fishermen, the Chinese coast guard could cede its jurisdictional presence in Indonesian waters. Reciprocal access to Chinese waters could also be sought. UNCLOS’ articles on semi-enclosed seas, after all, enjoin bordering coastal states to coordinate the management, conservation and exploitation of the living resources of the sea.

President Joko "Jokowi" Widodo's government has been a responsible custodian of Sino-Indonesian relations. Beijing too shares a heavy obligation to be markedly more transparent with its maritime claims. Bilateral relations are too important to be deflected by the politically charged but materially modest encroachments in the waters adjoining Natuna regency. The sooner the matter is consensually resolved, the better it will be for all.

__________

Resident senior fellow at the Institute for China-America Studies in Washington, DC

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