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.