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Petro-politics complicates
territorial spat
WITH the conclusion of the presiden-
tial election in Indonesia on July 8, the
situation in the Celebes Sea looks calm.
The challenge to Indonesia and Malay-
sia is to ensure that the undercurrents
which have pervaded the campaign
are reined in and that the rules of en-
gagement adopted by both navies are
also revised to prevent trigger-happy
and overzealous commanders from
spoiling the atmosphere.
The harsh words during the presi-
dential election should not be allowed
to mar efforts by the Malaysia-Indo-
nesia Joint Committee on Maritime
Boundary Delimitation to seek an eq-
uitable solution to end many years of
squabbles. Since its inception in 2005
this committee has met 13 times not
only to discuss the crisis in the Celebes
Sea but also other unresolved mari-
time boundaries between Malaysia
and Indonesia. Hopefully, a satisfactory
package deal can be found soon.
Resolving maritime boundaries is
time-consuming and can be complex
without give and take or trade-offs.
When the outcome is seen as defend-
ing the territorial integrity in a zero
sum term, the way forward can be
treacherous as it leaves very little
space for serious negotiations to take
place. A win-win mechanism must be
built into the negotiations to save face
by demonstrating tangible benefits like
economic opportunities. Evidently,
both parties have their eyes on the
hydrocarbon potential in the Celebes
Sea where overlapping concessions
have been awarded to multinational
oil companies. The overlap has compli-
cated maritime boundary delimitation
which is straightforward if the estab-
lished rules are adhered to. As usual,
the devil is in the politics, in this case,
petro-politics.
Both states should leverage on
their vast experience in managing
similar disputes.
By agreeing to temporarily suspend
sovereignty in the disputed area for
economic benefits, the states are able
to defuse tension. A joint development
mechanism in the Celebes Sea that
lasts for fifty years, for example, is a
win-win situation for both parties.
The dispute in the Celebes Sea
should be understood in diplomatic and
historical context. Contrary to recent
comments, the crisis can be traced
back to 1960 when Indonesia applied a
law based on the 1960 Djuanda Decla-
ration for an archipelagic state status.
The 1982 Law of the Sea Convention
defines an archipelagic state as a state
constituted wholly by one or more
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Comment
by BA Hamzah
archipelagos and may include other is-
lands. The law permits an archipelagic
state to draw straight baselines to join
their outermost islands with the main
islands in accordance with certain
established principles. The passage
of this law has made Indonesia one
of the largest maritime states in the
world where land and the water body
are integrated as one in the traditional
Malay lebensraum concept of tanah
dan air (land and water).
When Indonesia unilaterally de-
clared itself to be an archipelagic state
in 1960, it did not include the islands
of Sipadan and Ligitan as base points.
But in 1998 Indonesia included them
before removing them in 2008 follow-
ing the International Court of Justice
decision in December 2002 rejecting
the Indonesian assertion that it has
sovereignty over the islands. Instead,
the ICJ awarded them to Malaysia
because Malaysia could demonstrate
that it has, over a long period of
time, continuously asserted effective
administration of the said islands; the
principle of effectivite was applied in
this case. With this affirmative deci-
sion, one would have thought that the
sea bed boundary that Malaysia drew
in the Celebes Sea in 1979 by using
the two islands as base points was
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no longer contested. In hindsight, had
the ICJ decision gone the other way,
Malaysia would be required to adjust
its sea-bed boundary. Although Indo-
nesia has agreed to abide by the ICJ
judgment, clearly it does not appear
to accept it.
Indonesia’s political quest to estab-
lish an archipelagic state that is legally
recognised by the international com-
munity was a long struggle to which
credit must be given to their diplomats
for their tenacity and perseverance.
Nonetheless, without support from
the neighbouring states like Malaysia,
the concept would have been stillborn.
Our record shows that Malaysia went
out of its way to rally support for Indo-
nesia to become an archipelagic state,
a fact that many younger generations
in Indonesia are not aware of or have
taken for granted. Those who know,
choose to remain silent.
One favour that Malaysia did was
to quickly agree in 1969 – to sign three
sea-bed treaties with Indonesia in the
Strait of Malacca, off Tanjung Datu
in Sarawak and off the East Cost of
Malaysia. Kuala Lumpur cited the 1958
Geneva Convention on the law of the
sea as its basis and with Indonesia’s
agreement, the principle of straight
baseline for maritime boundary de-
limitation was adopted. When Malay-
sia incorporated these boundaries in
its 1979 map on the continental shelf,
Indonesia protested in 1980. Jakarta
not only questioned the basis of these
treaties but also the principles agreed
to in 1969. For example, Indonesia
questioned the use of some features
in the Strait of Malacca in Malaysia’s
baseline system.
That is not all. Indonesia has placed
pressure on Malaysia for an exclusive
economic zone boundary in the Strait
of Malacca as well as off Tanjung Datu
in Sarawak. In 1969 when the sea bed
15
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treaties were signed the concept of
the EEZ had yet to emerge but it was
generally agreed by many that it would
make sense for states to draw just one
boundary at sea as it does on land.
Although this dual regime is practised
by some states, it establishes two dif-
ferent jurisdictional regimes when a
single line regime for the sea bed and
the water column would be a more
acceptable and practical approach. A
dual-regime between Indonesia and
Australia, for example, was so fraught
with administrative and enforcement
problems that it has become dysfunc-
tional. In my view, one single maritime
boundary for Malaysia and Indonesia
makes plenty of political sense and
it can be more effective for policing
or other forms of enforcement activi-
ties. Indonesia is no stranger to single
maritime boundary lines; in 1977 Indo-
nesia and India agreed to a single line
maritime boundary in the Andaman
Sea and Bay of Bengal.
The spat in the Celebes Sea if it
is badly managed could undermine
resolution of more important security
and non-security problems facing both
countries and the region. The war
against terrorism, poverty, recession,
drug and human trafficking and others
will suffer serious setbacks without
concerted effort. No single state has
enough resources to deal with the
global security and economic threats
on its own. Notwithstanding this, in the
Celebes Sea, I have reasons to believe
that diplomats, policy planners, gener-
als, admirals and politicians can draw
on their wisdom to fix this; after all,
they had resolved more difficult state
relations in the past.
BA Hamzah is senior research fellow,
Faculty of Arts and Social Sciences,
University of Malaya. Comments: let-
ters@thesundaily.com.