Berhala: Another Sipadan and Ligitan if we're still ignorant
Berhala: Another Sipadan and Ligitan if we're still ignorant
I Made Andi Arsana and Clive Schofield, New South Wales, Australia
On Sept. 26, 2005 Antara official news agency carried a report
on the concerns of a North Sumatra's provincial legislator
regarding a website promoting Pulau Berhala as one of Malaysia's
tourist destinations. When reading this, Sipadan and Ligitan come
to mind. The two islands were secured by Malaysia when the
International Court of Justice (ICJ) ruled that sovereignty over
them rested with Malaysia in 2002.
In Indonesian minds this scenario raises disturbing questions:
Is Malaysia now pushing its luck and seeking to secure small,
isolated islands in boundary areas one by one? Is Pulau Berhala
vulnerable and could there be a repeat of the Sipadan and Ligitan
case?
As far as we are aware, there are five different islands
called Berhala. The first island is the one mentioned by the
legislators in the Malacca Strait, around 48 Nautical Miles from
Port Belawan, North Sumatra. The second Berhala is in Berhala
Strait close to the Riau Archipelago that has been a longstanding
source of conflict between the provinces of Jambi and Riau. The
three others are the one close to Sandakan, North Borneo, one
near Johor close to the Philippines, and the one in Perak called
Batuan Berhala. The last three islands are clearly part of
Malaysia and some of them are tourist destinations.
Unfortunately Antara did not clearly identify the website.
Therefore it is not clear which Berhala Malaysia promotes as its
tourist destination. If the island it promotes is the one belongs
to Malaysia Nurzal may have been unnecessarily alarmed.
If the Pulau Berhala in question is the one in Malacca Strait,
then it will be a different story. This case highlights the
attention the Indonesian government must accord to small but
potentially critically located islands. Pulau Berhala, as stated
by the Hidro-Oceanographic Office of the Indonesian Navy
(Dishidros), is one of the 12 small islands which are critical
due to their position in international boundary areas.
The other eleven islands are Pulau Rondo (Indonesia-India);
Pulau Nipa (Indonesia-Singapore); Pulau Sekatuang (Indonesia-
Vietnam); Pulau Marore, Pulau Mianggas and Pulau Marampit
(Indonesia-Philippine); Pulau Batek (Indonesia-Timor Leste);
Pulau Dana (Indonesia-Australia); Pulau Fani, Pulau Fanildo, and
Pulau Brass (Indonesia-Palau).
Let's look closely to Pulau Berhala in Malacca Strait and
review the maritime boundary agreement between Indonesia and
Malaysia.
In 1969, Indonesia and Malaysia entered into an Agreement
dividing the continental shelf between the two countries in
Malacca Strait and ratifications were exchanged on Nov. 7, 1969.
Ten points are agreed as the turning points of the boundary line.
Some commentators have opined that the agreement is not an
equitable solution as Malaysia applied straight baseline
connecting its outermost islands. This causes the boundary line
lies closer to the Indonesian coast than a strict median line.
Nonetheless, Indonesia and Malaysia freely signed the agreement
and it has now been legally binding for both countries for over
35 years.
At this stage, therefore, the equitableness of the original
agreement is irrelevant as the boundary line is well established
and can only be altered through mutual agreement. However, it is
relevant to note that the 1969 agreement only concerns the
position of the boundary in respect of the seabed and subsoil
between Indonesia and Malaysia and not the water column above
where no boundary has yet been agreed.
Unlike the uncertainty surrounding Sipadan and Ligitan where
there was no definite maritime boundary in Celebes Sea, the
continental shelf boundary in Malacca strait serves to make the
status of Pulau Berhala clear. Based on the 1969 agreement, Pulau
Berhala clearly falls on the Indonesian side of the line.
Furthermore, experiences tell that arguments concerning chain
of title based on historical evidence can be problematic and
difficult to prove due conflicting evidence and historical
interpretations. In the Sipadan and Ligitan case neither
Indonesia or Malaysia was able to establish their claims to title
based on treaty evidence.
Instead, the ICJ decided the case of Sipadan and Ligitan by
considering the principle of effectivitis -- acts of
administration that demonstrate effective exercise of authority
over the islands.
In the case of Pulau Berhala, not only is the island on the
Indonesian side of an agreed international maritime boundary line
but the balance of effectivitis also draws one to the conclusion
that sovereignty over the island rests with Indonesia.
In 1984, the Indonesian Government built a lighthouse on the
Island and since then has been maintaining the lighthouse by
continually assigning lighthouse attendants. This can be
considered as a legal action proving that Indonesia has done the
appropriate things as the owner of Pulau Berhala. Maintenance of
the lighthouse requires the Indonesian Government to take care
the environment; otherwise the lighthouse will not be able to
function properly.
This also proves the role of the Indonesian Government in
Pulau Berhala fulfilling the principle of effectivitis. There are
therefore substantial effectivitis in support of Indonesian
sovereignty over Pulau Berhala.
We will see how Indonesia and Malaysia deal with this kind of
problem. It is very important for all citizens to clearly
understand the problem and support the governments to do their
best. Instead of being over-reactive, let's be calm and patient.
I Made Andi Arsana is a lecturer in the Department of Geodetic
Engineering, University of Gadjah Mada, currently studying
technical aspect of maritime boundaries at the University of New
South Wales, Australia
Clive Schofield is a senior Lecturer in the Centre for
Maritime Policy, University of Wollongong, Australia.