Lessons to learn from Sipadan-Ligitan

Lessons to learn from Sipadan-Ligitan

Siswo Pramono, Ph.D. Graduate Program, Political Science,
International Relations, School of Social Science, The
Australian National University, Canberra

The International Court of Justice (ICJ) awarded the Sipadan
and Ligitan islands to Malaysia. It is now time for us to learn
our lesson from such a "loss", while suppressing the temptation
to find scapegoats.

Malaysia has skillfully based its legal claims on its
regulatory and administrative assertions of authority over
Sipadan and Ligitan prior to when the dispute arose in 1969. This
legal maneuver proved devastating to our legal position, because
from 1945 to 1969, Indonesia had done little to assert its
authoritative presence on the islands. This is the key to
Malaysia's victory.

But did we really "lose" Sipadan and Ligitan? Sipadan and
Ligitan were disputed islands about which both of the claimants,
Indonesia and Malaysia, according to the Court, had weak cases.
Legally speaking, Sipadan and Ligitan should not even be
considered as belonging to either Indonesia or to Malaysia prior
to the Court decision on Dec. 17. Thus, we did not "lose" Sipadan
and Ligitan, but instead failed to "add" the islands to our
territory.

For skeptics, the failure accentuates the discontent over the
"loss" of East Timor in 1999 (while the two cases, are, of
course, incomparable). For the more optimistic, the Court's
ruling provides a legal certainty for the future use of the
islands.

With a peaceful end to the dispute, the window of opportunity
is now wide open for joint economic development, tourism in
particular, involving Malaysian Sipadan and Ligitan and other
Indonesian islands in the region. Let us be optimistic.

But did the legal battle cost us too much? It will be hard to
place a monetary value on the pride of a nation. While simply
surrendering the islands to Malaysia would have saved many
dollars, such a policy would have been hardly acceptable to our
people. Thirty years of diplomatic efforts by both sides had
turned up fruitless, so how to break the stalemate? A legal
battle was then an option, while a military battle over the
islands in the vast Sulawesi Sea, about 0.13 square kilometer
each, was not.

Experience dictates that the military solution did not prevent
the loss of our sovereignty over East Timor. It is not working in
Aceh or Irian Jaya. In no way would it have worked in Sipadan and
Ligitan.

Our choices in foreign policy are limited to either practicing
the law of the jungle or walking in the jungle of laws. The first
means the use of military force, which we have tried to avoid;
the latter means the use of legal expertise and intellectual
capacity to fight a legal battle. The legal battle over Sipadan
and Ligitan, while it cost us at least US$1.6 million for hiring
international lawyers, is comparatively cheaper than any possible
military confrontation.

Mastering the rule of the game is the key word for any dispute
settlement. The three-year trial at The Hague represented a great
intellectual exercise. Indonesia submitted a memorandum of about
150 pages, which was a concise paper on law. The exchange of
legal arguments between Indonesia and Malaysia, which has been
well documented and is accessible on the ICJ web-site
(http://www.icj-cij.org/icjwww/idocet), presented interesting,
almost academic, legal debates.

Indonesia and Malaysia employed the best international
counsels and advocates to help fight their case. Ironically, both
sides employed Western experts to help defend their arguments,
which were based on Western colonial-era maps, treaties and
practices.

Why should we depend so heavily on these very expensive
foreign lawyers and experts? The business of pursuing our
national interests is the responsibility of all Indonesians.

We thus need to develop our own intellectual capacity and
expertise on international laws, since Sipadan and Ligitan will
not be the last territorial dispute we may have to settle with
our neighbors. Indeed, we do have such a capacity.

The international community highly praised professors Mochtar
Kusumaatmadja, an intellectual diplomat, and Hasjim Djalal, a
diplomatic intellectual, for their contributions to the
development of the international law of the sea, particularly
that relating to archipelagic states. We badly need more experts
of such caliber to defend the integrity of our vast archipelago.

Cultivating good lawyers is expensive. However, a sum equal to
the amount spent in hiring international lawyers for The Hague
would be enough to send 20 Indonesians to study at the best law
schools in Europe, the United States, and Australia for a four-
year doctoral program. It is thus the chance for our educational
institutions, research centers and national planners to meet this
pressing demand.

As a nation, we have decided to settle any dispute with our
neighbors in a peaceful manner. Our decision to bring the
territorial dispute with Malaysia to the ICJ for a final solution
was correct. We have done our best. After all, as a newly
democratic country, Indonesia should respect the rule of law
including international law, and learn how to use it to pursue
our national interests in a peaceful and elegant way.