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