Ashmore Reef: Indonesia's or Australia's?

Ashmore Reef: Indonesia's or Australia's?

I Made Andi Arsana
Sydney

Ashmore reef (a.k.a. Pulau Pasir) is currently being disputed
by Indonesia and Australia.

If we talk about an island/reef/islet, we are talking about
sovereignty. In dealing with sovereignty we do not consider
distance.

If we talk about a state authority in the sea territory, we
are dealing with sovereign rights, not sovereignty. Distance
becomes the key issue as it depends on the distance measured from
the baseline, commonly the coastline depicting the low water
line. With regards to this, it is true that we need to consider
maritime zones and boundary issues.

Whose reef is Ashmore anyway?

The sovereignty over a reef should be carefully decided. It
does not depend on its distance to a state's mainland. It is a
legal issue.

A website in the Netherlands reveals that Ashmore Reef was
annexed by Britain in 1878. Together with Cartier Island, Ashmore
was transferred to Australia on July 23, 1931 and is then part of
the Northern Territory of Australia (1938-1978). A CIA website,
one of the resources people may trust, reveals similar facts.
CIA's World Fact Book confirms that Ashmore reef is under
Australian sovereignty. Further support also comes from GEsource,
an academic website in the UK.

By plotting the coordinates of Ashmore Reef (120 13.98' S,
1230 4.98' E) in the Indonesia-Australia EEZ boundary map, it is
clear that Ashmore Reef lies within the Australian EEZ. This,
implicitly, implies that Indonesia has acknowledged Australian
sovereignty over the reef.

From a historic point of view, it is true that the ancestors
of the Timorese people had been coming to Ashmore Reef since the
1630s. However, Rais and Tamtomo (Kompas, April 11, 2005) assert
that the Netherlands never secured the reef in its colonial
territory and the government administering the reef was Britain.
Indonesia cannot claim Ashmore Reef just because its ancestors
came there, conducted economic activities and died on the reef
provided that the government administering the reef was not the
colonial administration in Indonesia (the Netherlands).

It is indeed ironic that Indonesians (Timorese and others) who
have been visiting and carrying out activities on Ashmore Reef
for hundreds of years are not entitled to own the reef, while
Britain (Australia), who "discovered" Ashmore in the nineteenth
century, secures stronger rights.

It is worth noting that modern law emphasizes a legal claim
rather than visits and activities. If it is true that Britain
legally claimed and administered Ashmore Reef and the Netherlands
did not protest, its sovereignty would obviously be Australia's.

By contrast, Tanoni states that there is strong evidence that
Ashmore Reef was part of the Netherlands during the colonial era.
He asserts that the implementation of a regulation regarding sea
cucumber and other marine biota collection around Ashmore Reef is
convincing evidence for its claim over the reef. Unfortunately he
did not specify the document he referred to. However, if this is
true, it could possibly invalidate Britain's claim over the reef
in the eighteenth century.
Agreements between Indonesia and Australia

In 1971/1972, Indonesia and Australia agreed on a seabed
boundary. Some experts opined that it was not an equitable
boundary, as the line lies closer to Indonesia. The Australian
argument emphasizes the principle of natural prolongation (seabed
geomorphology). It suggested that the natural break of the
Australian Indonesian continents exists close to Timor Island, so
that the seabed boundary lies far from the median line favoring
Australia.

This practice was supported by legal developments at that
time. The International Court of Justice's decision on Feb. 20,
1969 regarding The North Sea seabed case between Germany and
Denmark, for instance, gave the principle of natural prolongation
considerable significance. In other words, Australia's argument
was supported by jurisprudence. However, the post-UNCLOS (1982)
development tends to give less consideration to seabed
geomorphology. In the case of Libya and Malta (1985), for
example, the ICJ decided that within 200 nautical miles, seabed
geomorphology is irrelevant and the court's judgment was based on
the distance principle.

It might be true that the seabed boundary between Indonesia
and Australia is inequitable. However, it is worth noting that
the decision was with regards to the positive law applicable at
that time. If necessary, Indonesia may renegotiate the boundary,
provided that Australia agrees to do so. However, it is unlikely
that Australia would want renegotiation.

Another agreement requiring attention is the 1997 EEZ
boundary. Unlike the seabed boundary, this is much more equitable
as the border lies in the median line between the two states.
Unfortunately, Indonesia has not ratified the agreement in its
internal law.

Regarding Ashmore Reef, there is an MOU in 1974/75 allowing
Indonesian traditional fishermen to fish around Ashmore Reef.
Surprisingly, there were reports that Australia restricted
Indonesian fishermen from fishing in the area due to
environmental reasons. This must have caught the attention of the
Indonesian government and it should clarify this as it deals with
the lives of Indonesian fishermen.

Undoubtedly, it is Indonesia's obligation to keep the
archipelago intact and united. However, clear understanding
regarding the legal, technical and scientific aspects are
essential. Everybody should carefully analyze and be more
critical of every single issue regarding border conflict.

A wrong decision may lead Indonesia to huge material losses as
well as a decline in its reputation as it might be considered as
an emotional and irrational society.

The available legal evidence, so far, suggests that Ashmore
Reef is under Australian sovereignty. However opinions and
arguments suggesting the opposite are seriously worth
considering. Let's do our part and let the governments do their
best to achieve an equitable solution.

The writer is a lecturer in the Department of Geodetic
Engineering, University of Gadjah Mada and is currently studying
the technical aspects of maritime boundaries at the University of
New South Wales, Australia