Loss of the islands: Respecting the decision

Loss of the islands: Respecting the decision

Bantarto Bandoro, Editor, 'The Indonesian Quarterly',
Centre for Strategic and International Studies (CSIS),
Jakarta, bandoro@csis.or.id

The news on the verdict on the Dec. 17 of the International
Court of Justice (ICJ) on the case of Sipadan and Ligitan between
Indonesia and Malaysia was in the local and foreign mass media.
The world court in The Hague ruled that two tiny resource-rich
islands in the Sulawesi Sea belong to Malaysia, ending a
longstanding dispute between Jakarta and Kuala Lumpur.

Indonesia and Malaysia both laid a claim to the islands three
decades ago, when they embarked on a search for oil and gas in
the area. The two countries then agreed to hand the decision to
the ICJ in the Hague in 1997 after series of bilateral talks
failed to produce a satisfying results.

In the preceding, it was assumed that Indonesia and Malaysia
both put forward their arguments on both the legal title and
actual possession over the islands. It was revealed then that the
Court used the second as the basis of its decision.

Just before the decision was taken, Minister for Foreign
Affairs Hassan Wirayuda was reported as saying that in a
rhetorical sense, Indonesia would fight to the last drop of blood
to protect the motherland.

Such talk brings to mind Megawati's father and Indonesia's
founding president, Sukarno, who brought the country to the brink
of an open war with the British in 1963 in his quest for a Malay
empire spanning the mainland of Malaya, the British colonies of
North Borneo and Serawak, Brunei and the Philipines. Megawati has
displayed none of the fiery personae of her father and indeed
Hassan Wirayuda tagged a conciliatory remark on to his
"rhetorical " statement.

In its ruling the ICJ rejected claims by both countries that
they had sovereignty over the two islands based on the treaties
in the late 19th century by their respective colonial powers,
Britain and the Netherlands. Instead, the Court ruled that Kuala
Lumpur had shown that it had asserted authority over the islands,
notably in the 1930's with several environment regulations, while
Indonesia did not protest Malaysia actions until 1969. It was
unclear why Indonesia failed to explain why it was seen late in
presenting its argument of the island 's ownership, until
Malaysia claimed the ownership of those islands.

The ruling came as a shock here, as some still do not believe
that the country lost two islands to our immediate neighbor.
Indonesia cannot hide its disappointment over the ICJ ruling as
it ran contrary to the efforts of our Ministry of Foreign
Affairs. Strong reaction over the Court decision came among
others from legislators, arguing that the government has not been
serious enough in defending its sovereignty over the islands.
Some legislators even proposed to use their right of
interpelation which in any case would not change the ICJ
decision.

In an attempt to defend the government, Minister Hassan was
reported as saying that the dispute was a legacy from the past
administration and had gone through a long process that traversed
the tenure of the four presidents. Thus, it is not fair to judge
the process only at the end of the dispute. Though the defense
was not meant to blame the previous government, it should not
been seen as an excuse for the current government not to confess
that it had diplomatically and legally failed to defend the
islands.

Interestingly, when the government decided to have ICJ settle
the dispute, there was already prediction that the chances of
claiming the two islands were fifty-fifty, given that Indonesia
has never been the owner of the islands. The court could not
ignored the fact that the Indonesian Act No.4 of 1960, which drew
up Indonesia's archipelagic baselines, and its accompanying map,
did not indicate Sipadan and Ligitan as relevant baselines.
Having said this, the court's decision to give the island to
Malaysia should not come as a shock.

Now that Malaysia has won the case, Indonesia should not let
itself sink deeper into sadness. This indeed has always been the
psychological consequences of any court's ruling, namely either
you are proved right or guilty, or entitled or not entitled to
certain property. What is more important now is to accept,
respect and implement the court decision as the decision resulted
from a fair, transparent, responsible and dignified process.

Other steps to be taken by the government should include steps
such as: (1) renegotiate the maritime boundaries so as to prevent
this from becoming new source of conflict between Indonesia and
Malaysia; (2) avoid hostile attitude when dealing with Malaysia
on any regional issues, either in the bilateral or ASEAN
framework; (3) approach the public in such away that would
prevent the emergence of an anti-Malaysian sentiment, one that
would certainly effect Indonesia-Malaysia bilateral relations and
disturb the implementation process of the decision; and (4) cease
whatever activities Indonesia has conducted on the islands, if
any, to indicate cooperation in implementing the ICJ decision.

With no appeal to the court decision, we certainly cannot turn
the clock back. The most important lesson we learned here is that
we should exert physical sovereignty over the remaining 17.506
island, especially the inhibited ones. But this is not enough.
Perhaps, a comprehensive review of our maps and treaties we have
with foreign countries is imperative if we are to prevent similar
disputes.

Our defeat would also tell the public of the fact that we have
not given our best shot in our diplomacy in defending the
territory. While our bilateral diplomacy with Malaysia failed to
produce solution to the dispute, our struggle in the court
process was not sufficiently backed up by convincing political
and legal arguments. The loss of the islands was also a blow to
the Indonesian national psyche, not least because the government
has spent some Rp 17 billion over the last three years on an
international team of legal experts.

The defeat should at least make our government more aware of
the fact that defending our sovereignty over our thousands of
islands is indeed a very expensive business, but it is necessary
and is the responsibility of us all. It is more important now
that we must continue to live peacefully with Malaysia as our
immediate neighbors. Nevertheless the future of our relations
with Malaysia can never be predicted, as both countries still
have problems to be mutually settled.