'Sharing pact' may solve Ambalat

Mark Valencia, The Straits Times, Asia News Network, Singapore

The recent joint statement by the Indonesian and Malaysian foreign ministers that the Sulawesi Sea dispute would be resolved peacefully was a welcome step in defusing a potentially dangerous situation.

Indonesia's deployment of seven warships and four F-16 fighter jets to the disputed portion of the Sulawesi Sea, as well as its placing of a battalion of amphibious forces on standby for deployment to the area, underscored the potential seriousness of the dispute.

Malaysia probably understands that the current Indonesian government is in no position to be passive regarding foreign claims to what it considers its continental shelf, which has much oil potential.

Given the secessionist movements in Aceh and West Irian, the independence of the former East Timor, and the loss of the islands of Sipadan and Ligitan to Malaysia through a decision of the International Court of Justice (ICJ), the Indonesian government's very legitimacy could be threatened if it appeared to be ineffectual in defending its sovereignty.

Indeed, domestic politics probably forced Jakarta's muscular stance.

The Sulawesi dispute came on top of Malaysia's crackdown on illegal Indonesian immigrants. Anti-Malaysian demonstrations have broken out in Makassar and Jakarta. Indonesian Parliamentary Speaker Agung Laksono has called for the use of military force if necessary and Mr Theo Sambuaga, the chairman of Indonesia's Commission on Political and Security Affairs, has urged Jakarta to recall its ambassador from Kuala Lumpur.

Malaysia's claim to the area in question as part of its continental shelf is based on its 1979 Peta Baru (new map), which Indonesia has never recognised. The claim is based on Malaysia's ownership of Sipadan and Ligitan, but a minority opinion in the ICJ case states that the awarding of the islands to Malaysia does not necessarily mean that they could be used as basepoints to claim a continental shelf and a 200-nautical mile (nm) Exclusive Economic Zone, but perhaps only a 12nm territorial sea.

The Malaysian continental shelf claim encloses the edge of the onshore/offshore oil and gas bearing Tarakan basin. If Sipadan and Ligitan cannot be used as basepoints, an equidistance line between Indonesia's archipelagic baselines and Malaysian territory would give more of this basin to Indonesia.

But Malaysia seems to have claimed territorial seas and a section of the continental shelf which extend beyond the line of equidistance with Indonesia. A length of the boundary Malaysia claims does follow closely an equidistant course, but it then seems to extend too far to the south-east, discounting Pulau Maratua, a feature forming part of Indonesia's archipelagic baseline.

Moreover, Malaysia's inferred baseline, which links the Malaysian territory of Sebatik Island with Sipadan, does not connect islands fringing the coast. Nor does it enclose a coast which is deeply indented, and it deviates appreciably from the general direction of the coast. This means it may not conform with the provisions for baselines stipulated by the 1982 United Nations Treaty of the Law of the Sea.

Also, Malaysia has unilaterally drawn the common territorial sea boundary as a line which bisects the angle formed by Indonesia's archipelagic baseline and Malaysia's inferred baseline. Such a line assumes that Batuan Unarang, a rock which Indonesia claims and from which it may be entitled to claim a 12nm territorial sea, belongs to Malaysia, presumably because it lies within its claimed territorial sea.

Malaysia's military head, General Zahidi Zainuddin, has already said that the navy will protect the country's oil industry.

And according to Indonesia, Malaysian aircraft have repeatedly violated Indonesian airspace in the area.

Meanwhile, according to Indonesia, fishermen from Nunukan were fired upon and one of their boats rammed by the Malaysian warship KD Sri Malacca near Batuan Unarang. Malaysia subsequently protested against the 'intrusion' of Indonesian naval vessels into Malaysian territorial seas, a protest which Indonesia rejected.

The two sides have now agreed to 'joint patrols' in the area to avoid similar incidents, and Indonesia has withdrawn five of the seven warships it had sent there.

However, the presence of the remaining warships and planes from both nations in the disputed area is worrisome. The two countries may be as close as 'teeth and lips', but sometimes teeth can bite lips. Now that the Indonesian media - at the request of Indonesian President Susilo Bambang Yudhoyono - have ceased their histrionics, experts from both sides can begin to try to resolve the issue, or seek a means of doing so.

Fortunately - and wisely - both Jakarta and Kuala Lumpur have pledged to seek a peaceful solution. Malaysian Foreign Minister Syed Hamid Albar met his Indonesian counterpart Hassan Wirayuda in Jakarta last Thursday to discuss the dispute. And technical expert teams from both sides will meet next week to begin to try to resolve the complicated issue.

Although the International Law of the Sea Tribunal has been mentioned as a possible forum for resolution of this dispute, this is an expensive and time-consuming option and one or the other party may be very unhappy with the outcome - as was Indonesia in the ICJ case. A negotiated solution is a better bet for both, to resolve the dispute as well as to ensure enduring good relations between the two countries.

One problem is that Indonesia appears to want to negotiate all its boundary issues with Malaysia, including those in the Malacca Strait and South China Sea, in one forum, presumably so it can leverage the negotiations with trade-offs. Malaysia rejects this package approach.

However, given Indonesia's current sensitivities regarding its national integrity, Malaysia's negotiation of a mutually acceptable solution to the Sulawesi Sea dispute would be in the interest of stable long-term relations with its much larger neighbour.

Indonesia has offered to negotiate a 'sharing agreement'. In such an arrangement, the two sides could either agree on a boundary or agree on the dimensions of the area in dispute and leave the boundary for future generations to resolve.

But with or without a boundary, they would then proceed to manage and share the profits from any resources discovered in an agreed area - perhaps that lying between Malaysia's unilateral claim and its islands' territorial sea. The theory is that access to some oil or gas is better than none. Besides, no foreign oil company is likely to operate in an area of potential conflict. Malaysia already has such joint development agreements with Thailand and Vietnam, while Indonesia had one with Australia in the former East Timor.

Perhaps in return for Malaysia's agreeing to negotiate a joint development arrangement for the Sulawesi Sea, Indonesia will agree to negotiate a solution to that dispute separate from the others. In any case, the bigger picture of good relations, Asean solidarity and regional stability must be kept firmly in mind.

The writer is a maritime policy expert based in Hawaii.