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.