Ambalat revised: The way forward?<\/p>\n
Clive Schofield and I Made Andi Arsana, New South Wales, Australia<\/p>\n
The initial furor over ownership of the Ambalat offshore area
\nhas died down as formal negotiations on the delimitation of a
\nmaritime boundary have started and rival navies have been reigned
\nin. What now?<\/p>\n
The idea of negotiating a maritime boundary agreement may make
\nunwelcome reading to many Indonesians convinced of the validity
\nof Indonesia's claims, as this means that Indonesia is unlikely
\nto secure the entirety of the disputed \"Ambalat offshore area\".
\nThis is because it is rare indeed that a negotiation results in
\none participant gaining everything and the other nothing.<\/p>\n
Having said that, negotiation is certainly a hugely attractive
\nand likely route to dispute resolution compared to third-party
\nsettlement options. Bilateral negotiations have the distinct
\nattraction for the Governments concerned of their retaining
\ncontrol over the destiny of the dispute, quite apart from the
\ntime and cost considerations involved in taking a case to the ICJ
\nat The Hague.<\/p>\n
In this context it is perhaps worthwhile recalling that the
\ndispute sparked by oil exploration issues. Energy security
\nconcerns, as well as nationalist concerns over sovereignty and
\nsovereign rights, therefore remain at the root of the dispute.<\/p>\n
Experience from elsewhere around the world, no oil company
\nwill invest a huge amount of money in the area where jurisdiction
\nover a particular seabed area is in doubt. No exploration and
\nexploitation will be done without political, legal and fiscal
\ncertainties. This can, in turn have significant impacts on the
\nnational economy for the States concerned.<\/p>\n
In this regard it is certainly encouraging that negotiations
\nhave begun in earnest with the first round of which took place in
\nBali on March 22-23, 2005. However, the talks were conducted in
\nconfidence and this has raised concerns among some Indonesian
\npeople, that their Government is somehow deliberately keeping
\nthem in the dark amid fears of a sell-out. Are people right to be
\nconcerned at this apparent lack of transparency?<\/p>\n
The answer here must be clearly in the negative as the vast
\nmajority of such maritime boundary delimitation negotiations are
\nconducted in confidence. A key reason for this is to allow those
\ninvolved maximum flexibility to propose creative solutions, free
\nform intrusive media scrutiny. Indeed, most boundary negotiations
\nwill specifically state that any proposals entertained in
\nnegotiations are without prejudice to either Government's
\nposition and, in sum; nothing is agreed until everything is
\nagreed.<\/p>\n
Within the maritime negotiations context, however, it is true
\nthat the potential presence of oil and gas can act as a relevant
\nfactor in negotiating maritime boundaries. Apparently, neither
\nside is likely to secure the entire area under dispute. It is
\ngenerally hard to determine with accuracy the position, quantity
\nand quality of hydrocarbon reserves without extensive exploration
\nactivity. A compromise line is, therefore, risky that the seabed
\nresources at stake may end up on the \"wrong\" side of the boundary
\nline.<\/p>\n
In the Ambalat context, all of these factors apply. If a
\nnegotiated delimitation line, mutually acceptable to both parties
\nis concluded, all well and good. Given the divergent positions of
\nthe parties, however, such a resolution may prove difficult to
\nachieve, at least in the short term. There is, however, an
\nalternative solution. Indonesia and Malaysia could instead opt
\nfor a joint development zone covering all or part of the
\noverlapping claims.<\/p>\n
Both States have experience of this type of resolution:
\nIndonesia, in partnership with Australia, was the author of the
\nhugely complex and ground-breaking joint zone governing the Timor
\nGap area (now partially taken over by Timor Leste post-
\nindependence); and Malaysia through two joint development area
\nagreements with Thailand and Vietnam respectively. All of these
\nhave proved successful.<\/p>\n
Fundamentally, the joint zone option would allow the desired
\nresource exploration and development without undue delay and
\nwithout the need for a potentially costly and time consuming
\ndelimitation exercise. Such arrangements therefore offer a
\npotential alternative avenue to resource development and sharing
\nwhere the opposing positions of the parties involved become
\nentrenched. These have the advantage of flexibility in terms of
\narea, duration and resource or function applied to. The
\ncooperative nature of such agreements can also have spin-off
\nbenefits, acting as a confidence-building measure. In the
\nIndonesia-Malaysia case, a joint zone has the potential to help
\nto rebuild relations apparently soured both by the dispute over
\nAmbalat and issues such as Malaysia's recent forceful crack-down
\nagainst illegal workers in Malaysia, many of whom are Indonesian.<\/p>\n
Finally, joint zones are in line with international law with
\nthe Law of the Sea Convention stating in Articles 74 and 83
\nrelating to the delimitation of the exclusive economic zone and
\ncontinental shelf that: \"Pending agreement...the States
\nconcerned, in a spirit of understanding and cooperation, shall
\nmake every effort to enter into provisional arrangements of a
\npractical nature and, during this transitional period, not to
\njeopardize or hamper the reaching of a final agreement. Such
\nagreements shall be without prejudice to the final delimitation.\"<\/p>\n
This is not to argue that joint development is applicable in
\nall circumstances, merely because a dispute and overlapping
\nclaims to maritime jurisdiction exist. For joint development to
\nfunction successfully, considerable political will is required.
\nThe relationship between its signatories needs to be strong
\nenough to survive multiple changes in government over the years.<\/p>\n
Nonetheless, for all the potential pitfalls, emerging State
\npractice appears to favor joint development and such practical
\nproblem-solving approaches have the potential to be functional,
\nflexible and equitable. All in all, therefore, the joint
\ndevelopment option could represent a win-win scenario for both
\nIndonesia and Malaysia and is worthy of serious consideration.<\/p>\n
Clive Schofield is a senior lecturer in the Center for
\nMaritime Policy, University of Wollongong, Australia.<\/p>\n
I Made Andi Arsana is a lecturer in the Department of Geodetic
\nEngineering, UGM, currently research student in the University of
\nNew South Wales, Australia<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/ambalat-revised-the-way-forward-1447893297",
"image": ""
},
"sponsor": "Okusi Associates",
"sponsor_url": "https:\/\/okusiassociates.com"
}