Indonesia–Malaysia maritime boundaries delimitation: a retrospective

ABSTRACT

‘Good fences make good neighbours.’ But how long should one try build fences with your neighbour? Boundary delimitation has always been a key issue in international law and international relations, sometimes taking many years to conclude. States tend to be very cautious in delimiting their boundaries because once agreed, it cannot be changed. The Indonesia–Malaysia maritime boundary is not an exception. These two relatively young nations have negotiated its maritime boundaries since the 1960s. More than 50 years later, maritime boundary segments still remain to be settled. But where does it stand now? This article will highlight a number of important issues of the Indonesian–Malaysian maritime boundaries delimitation, the latest development, and the way forward on where these two nations will proceed.

Notes on contributor

Eddy Pratomo is the Ambassador, Special Envoy of the President of the Republic of Indonesia for Maritime Delimitation between Indonesia and Malaysia. He joined the Indonesian Foreign Service in 1983 and held various positions including the Deputy Director for Territorial Treaties, the Director for Economic and Social-Cultural Treaties, the Director General for Law and Treaties of the Ministry of Foreign Affairs, and the Indonesian Ambassador to the Federal Republic of Germany. Eddy Pratomo earned his Master of Arts in International Law from St. John’s University, New York, in 1989, and his Doctoral Degree in Law from the University of Padjadjaran, Bandung, in 2011. The view expressed in this article is solely that of the author and are not in any way a reflection of the view of the Government of the Republic of Indonesia.

Notes

1. See 1915 and 1928 Agreements, relevant parts mentioned in the Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgement, ICJ Rep. 2002, (Sipadan-Ligitan Case Judgment), paragraphs 71–73.

2. For history of the development of the territorial sea concept, see Churchill and Lowe (1988, 59) et seq.

3. See the breadth of Contiguous Zone provision, Convention on the Territorial Sea and Contiguous Zone, 29 April 1958 (entered into force 22 November 1964), 516 U.N.T.S. 205, Article 24 (2).

4. The Declaration is further elaborated and implemented by the Law No. 4/Prp. 1960 on Indonesian Waters.

5. United Nations Convention on the Law of the Sea (UNCLOS), 10 December 1982 (entered into force 16 November 1994), 1833 U.N.T.S..

6. UNCLOS, Article 47.

7. UNCLOS, Article 49 and 50.

8. For the history of the development of the Exclusive Economic Zone (EEZ) see Nordquist (1993, 491–510).

9. UNCLOS, Part V, Articles 55–75.

10. Agreement between the Government of Malaysia and the Government of Indonesia on the Delimitation of the Continental Shelves between the Two Countries, Kuala Lumpur, 27 October 1969.

11. Treaty between the Republic of Indonesia and Malaysia Relating to the Delimitation of the Territorial Seas of the Two Countries in the Strait of Malacca, Kuala Lumpur, 17 March 1970.

12. See for example, Article I of the 1969 Agreement specifically mentioned ‘The boundaries of the Indonesian and Malaysian continental shelves … ’.

13. Sipadan-Ligitan Case Judgment, at paragraph 135.

14. The Special Agreement was signed by Indonesia and Malaysia on the 31 May 1997, then jointly submitted to the ICJ on 2 November 1998.

15. The Special Agreement was signed by Indonesia and Malaysia on the 31 May 1997, then jointly submitted to the ICJ on 2 November 1998.

16. Sipadan-Ligitan Case Judgment, at paragraph 148–149.

17. One of the reason why Indonesia cannot demonstrate peaceful display of sovereignty to the Islands is because the first baseline that Indonesia created as a sovereign through Law No. 4/Prp. 1960, does not listed basepoint in Sipadan and Ligitan which was, presumably, Indonesia's outermost point. Indonesia then rectify this mistake through the Government Regulation No. 38/2002, but this was way after the critical date and even almost when the ICJ deliver its judgment. Indonesia further adjusted its baseline through the Government Regulation No. 37/2008 that no longer include Sipadan and Ligitan. This latest baseline system was deposited to the United Nations Secretary General, in accordance with the obligation under Article 47 (9) of UNCLOS.

18. See Law No. 4/Prp. 1960 on Indonesian Waters.

19. The media also highlighted that there is a territorial intrusion in Ambalat. But whether or not there is a territorial intrusion, it depends on a number of conditions. If the said ship passes within the territorial waters claim and it exercises more than what is allowed in the innocent passage scheme, then there is a violation. If the said ship passes outside the territorial waters claim of Ambalat, then there is a violation only if the said ship engages in exploration or exploitation of the marine resources.

20. See UNCLOS, Article 15.

21. For methods of drawing archipelagic baseline and straight baseline, see UNCLOS, Articles 7 and 47.

22. See UNCLOS, Article 74 and 83.

23. The North Sea Continental Shelf Case (Germany v. Denmark; Germany v. the Netherlands), judgement, ICJ Rep. 1969, 3, at paragraph 101 the ICJ stipulates ‘delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances’.

24. See the North Sea Continental Shelf Case, Judgment, at paragraph 101. The full stipulation of the ICJ on this matter is that the ICJ requires the coastal States to negotiate and take into consideration:

• (1)the general configuration of the coast;

• (2)the physical and geological structure and natural resources of the continental shelf;

• (3)proportionality.

  This judgment then often referred to by subsequent judgment on maritime delimitation.

25. See also the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Rep. 2002, at paragraph 90; the Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Rep. 2007, at paragraph 289.

26. See, for example, the Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Judgment, ICJ. Rep. 2001, at paragraphs 218–220.

27. See, for example, the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar/ Case No. 16 (Bangladesh/Myanmar), Judgment, ITLOS 2012, at paragraph 499 whereas the ITLOS applies the disproportionality test.

28. UNCLOS, Article 13. A low-tide elevation itself is not susceptible for ownership or occupation if it 's not part of a mainland or other maritime features.

29. See UNCLOS, Article 121.

30. See the Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar/ Case No. 16 (Bangladesh/Myanmar), Judgment, ITLOS 2012, at paragraph 152, the ITLOS apply full effect for the maritime zone projected from the St. Martin's Island for the territorial sea delimitation, meaning that St. Martin's Island (Bangladesh) is entitled to project the same distance of maritime zone as to that of the opposing coastline of Myanmar, thus the boundary line is the equidistance line from St. Martin's to the Myanmar's mainland.

31. See the Continental Shelf Case (Libya v. Malta), Judgment, ICJ Rep. 1985, 13, at paragraphs 71–72. The ICJ stipulate that in order to achieve an equitable solution, the delimitation line shall be adjusted closer to the Malta side, thus, the Island of Malta only have partial effect in the delimitation when it delimit with the mainland of Libya.

32. See Award of the Arbitral Tribunal in the Second Stage of the Proceeding (Eritrea v. Yemen), Reports International Arbitral Award vol. XXII 17 December 1999, at paragraph 148.

33. See UNCLOS, Article 7.

34. See the Map that was published on 21 December 1979 titled ‘Peta Baru Menunjukan Sempadan Perairan dan Pelantar Benua Malaysia’ (New Map Showing the Territorial Waters and Continental Shelf Boundaries of Malaysia).

35. See UNCLOS, Article 47.

36. See the United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Sea No. 141 Indonesia: Archipelagic and other Maritime Claims and Boundaries, 15 September 2014, at page 3.

37. Treaty between the Republic of Indonesia and Malaysia relating to the Legal Regime of Archipelagic State and the Rights of Malaysia in the Territorial Sea and Archipelagic Waters as well as in the Airspace Above the Territorial Sea, Archipelagic Waters and the Territory of the Republic of Indonesia Lying between East and West Malaysia, 25 February 1982.

38. For Malaysian perspective, see Hamzah (2014, 207–226).

39. When this article was written the 29th Technical Meeting (the latest) was not yet convened.

40. The latest round of negotiation was the 29th Technical Meeting, Bali, 22-24 March 2016.

41. In this area, the negotiation was also being postponed due to the dispute between Malaysia and Singapore over the ownership of Pedra Branca, South Ledge, and Middle Rock. This dispute was then settled through the ICJ, see Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, ICJ Rep. 2008.

42. The case of Pedra Branca is different from Sipadan to Ligitan. While Sipadan–Ligitan at one point was considered as no man's land or terra nullius, Pedra Branca belonged to Johor (Malaysia) until the title was transferred to Singapore, see Judgment at paragraph 276.

43. See the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331, Article 62.

44. See Status of the Vienna Convention on the Law of Treaties, UN Treaties Series, available at https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&lang=en , last accessed 28 August 2015.

45. The principles embodied in Article 62 of the Vienna Convention on the Law of Treaties have been regarded as a codification of customary law, see Fisheries Jurisdiction Case (United Kingdom v. Island), Jurisdiction of the Court, Judgment, ICJ Rep. 1973, 3, at paragraph 36; see also Gabcikovo Nagymaros Project Case (Hungary v. Slovakia), Judgment, ICJ Rep. 1997, 7, at paragraph 46.