Berhala: Another Sipadan and Ligitan if we're still ignorant<\/p>\n
I Made Andi Arsana and Clive Schofield, New South Wales, Australia<\/p>\n
On Sept. 26, 2005 Antara official news agency carried a report
\non the concerns of a North Sumatra's provincial legislator
\nregarding a website promoting Pulau Berhala as one of Malaysia's
\ntourist destinations. When reading this, Sipadan and Ligitan come
\nto mind. The two islands were secured by Malaysia when the
\nInternational Court of Justice (ICJ) ruled that sovereignty over
\nthem rested with Malaysia in 2002.<\/p>\n
In Indonesian minds this scenario raises disturbing questions:
\nIs Malaysia now pushing its luck and seeking to secure small,
\nisolated islands in boundary areas one by one? Is Pulau Berhala
\nvulnerable and could there be a repeat of the Sipadan and Ligitan
\ncase?<\/p>\n
As far as we are aware, there are five different islands
\ncalled Berhala. The first island is the one mentioned by the
\nlegislators in the Malacca Strait, around 48 Nautical Miles from
\nPort Belawan, North Sumatra. The second Berhala is in Berhala
\nStrait close to the Riau Archipelago that has been a longstanding
\nsource of conflict between the provinces of Jambi and Riau. The
\nthree others are the one close to Sandakan, North Borneo, one
\nnear Johor close to the Philippines, and the one in Perak called
\nBatuan Berhala. The last three islands are clearly part of
\nMalaysia and some of them are tourist destinations.<\/p>\n
Unfortunately Antara did not clearly identify the website.
\nTherefore it is not clear which Berhala Malaysia promotes as its
\ntourist destination. If the island it promotes is the one belongs
\nto Malaysia Nurzal may have been unnecessarily alarmed.<\/p>\n
If the Pulau Berhala in question is the one in Malacca Strait,
\nthen it will be a different story. This case highlights the
\nattention the Indonesian government must accord to small but
\npotentially critically located islands. Pulau Berhala, as stated
\nby the Hidro-Oceanographic Office of the Indonesian Navy
\n(Dishidros), is one of the 12 small islands which are critical
\ndue to their position in international boundary areas.<\/p>\n
The other eleven islands are Pulau Rondo (Indonesia-India);
\nPulau Nipa (Indonesia-Singapore); Pulau Sekatuang (Indonesia-
\nVietnam); Pulau Marore, Pulau Mianggas and Pulau Marampit
\n(Indonesia-Philippine); Pulau Batek (Indonesia-Timor Leste);
\nPulau Dana (Indonesia-Australia); Pulau Fani, Pulau Fanildo, and
\nPulau Brass (Indonesia-Palau).<\/p>\n
Let's look closely to Pulau Berhala in Malacca Strait and
\nreview the maritime boundary agreement between Indonesia and
\nMalaysia.<\/p>\n
In 1969, Indonesia and Malaysia entered into an Agreement
\ndividing the continental shelf between the two countries in
\nMalacca Strait and ratifications were exchanged on Nov. 7, 1969.
\nTen points are agreed as the turning points of the boundary line.<\/p>\n
Some commentators have opined that the agreement is not an
\nequitable solution as Malaysia applied straight baseline
\nconnecting its outermost islands. This causes the boundary line
\nlies closer to the Indonesian coast than a strict median line.
\nNonetheless, Indonesia and Malaysia freely signed the agreement
\nand it has now been legally binding for both countries for over
\n35 years.<\/p>\n
At this stage, therefore, the equitableness of the original
\nagreement is irrelevant as the boundary line is well established
\nand can only be altered through mutual agreement. However, it is
\nrelevant to note that the 1969 agreement only concerns the
\nposition of the boundary in respect of the seabed and subsoil
\nbetween Indonesia and Malaysia and not the water column above
\nwhere no boundary has yet been agreed.<\/p>\n
Unlike the uncertainty surrounding Sipadan and Ligitan where
\nthere was no definite maritime boundary in Celebes Sea, the
\ncontinental shelf boundary in Malacca strait serves to make the
\nstatus of Pulau Berhala clear. Based on the 1969 agreement, Pulau
\nBerhala clearly falls on the Indonesian side of the line.<\/p>\n
Furthermore, experiences tell that arguments concerning chain
\nof title based on historical evidence can be problematic and
\ndifficult to prove due conflicting evidence and historical
\ninterpretations. In the Sipadan and Ligitan case neither
\nIndonesia or Malaysia was able to establish their claims to title
\nbased on treaty evidence.<\/p>\n
Instead, the ICJ decided the case of Sipadan and Ligitan by
\nconsidering the principle of effectivitis -- acts of
\nadministration that demonstrate effective exercise of authority
\nover the islands.<\/p>\n
In the case of Pulau Berhala, not only is the island on the
\nIndonesian side of an agreed international maritime boundary line
\nbut the balance of effectivitis also draws one to the conclusion
\nthat sovereignty over the island rests with Indonesia.<\/p>\n
In 1984, the Indonesian Government built a lighthouse on the
\nIsland and since then has been maintaining the lighthouse by
\ncontinually assigning lighthouse attendants. This can be
\nconsidered as a legal action proving that Indonesia has done the
\nappropriate things as the owner of Pulau Berhala. Maintenance of
\nthe lighthouse requires the Indonesian Government to take care
\nthe environment; otherwise the lighthouse will not be able to
\nfunction properly.<\/p>\n
This also proves the role of the Indonesian Government in
\nPulau Berhala fulfilling the principle of effectivitis. There are
\ntherefore substantial effectivitis in support of Indonesian
\nsovereignty over Pulau Berhala.<\/p>\n
We will see how Indonesia and Malaysia deal with this kind of
\nproblem. It is very important for all citizens to clearly
\nunderstand the problem and support the governments to do their
\nbest. Instead of being over-reactive, let's be calm and patient.<\/p>\n
I Made Andi Arsana is a lecturer in the Department of Geodetic
\nEngineering, University of Gadjah Mada, currently studying
\ntechnical aspect of maritime boundaries at the University of New
\nSouth Wales, Australia<\/p>\n
Clive Schofield is a senior Lecturer in the Centre for
\nMaritime Policy, University of Wollongong, Australia.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/berhala-another-sipadan-and-ligitan-if-were-still-ignorant-1447893297",
"image": ""
},
"sponsor": "Okusi Associates",
"sponsor_url": "https:\/\/okusiassociates.com"
}