Technical aspects of the Ambalat negotiations

Technical aspects of the Ambalat negotiations

I Made Andi Arsana, Jakarta

It seems that people have begun to lose interest in the
dispute between Indonesia and Malaysia over the offshore Ambalat
oil block, but with neither country likely to back down the issue
can be expected to rear its head from time to time and heat up
emotions.

Malaysia's decision to award a concession for oil exploitation
and management of the Ambalat block to Royal Dutch Shell last
February was not well received by the Indonesian government or
its people. The decision showed that Malaysia was definite that
Ambalat was part of its territory. Indonesia is equally confident
the area is its. This claim is supported by historical facts,
including that Ambalat was previously part of the Bulungan
Sultanate, which since Indonesian independence has been part of
Indonesia. This is known as the chain of title argument.

The reaction of the Indonesian government and its people to
Malaysia's awarding of the concession was understandable, given
that the country is still smarting from the decision of the
International Court of Justice to award Sipadan and Ligitan
islands to Malaysia after a long and complicated legal process.

Apparently, Malaysia is trying to push its luck by claiming
Ambalat. At least, this is what many Indonesians think.

To resolve the overlapping claims of Malaysia and Indonesia to
Ambalat, it is necessary to look back at negotiations between the
two countries over the international boundary of Borneo island,
which began in 1974 (according to Indonesia's Ministry of Foreign
Affairs).

It is well-known that the border between Indonesia and
Malaysia in the Celebes Sea, where Ambalat located, has not been
fully established. This has already resulted in Indonesia losing
Sipadan and Ligitan islands.

Should Malaysia and Indonesia fail to reach an explicit
agreement on Ambalat, it will be necessary to reconsider the 1891
Convention between Great Britain and the Netherlands, the two
countries that governed Borneo during the colonial era. This
convention is one of the main legal references in defining the
border between Indonesia and Malaysia in Borneo. Intensive
investigation needs to be done to determine whether the
convention explicitly governs ownership of Ambalat. This is,
analogically, similar to the use of the Treaty of 1904 for the
delimitation of the land border between Indonesia and Timor
Leste.

As reported by the Indonesian media, Malaysia has used a 1979
chart to claim Ambalat. With regards to this chart, Prescott, an
international maritime boundary expert, stated in 2004 that it
also contains a continental shelf boundary claim, where the claim
"lies beyond the median line along its entire length. The maximum
deviation in two sectors is about five nm (neothical miles). It
appears that in constructing this seabed claim Malaysia has
undervalued some legitimate Indonesian baseline points".

Despite the above view, it is necessary to systematically
investigate how a chart can be recognized and used as a legal
basis to claim an area.

This implies that the use of the 1979 chart by Malaysia must
meet acceptable scientific and legal considerations. If the chart
fulfills only partial needs and interests, disregarding the
sovereignty of other states, it cannot be used.

Unfortunately, as one of the main legal references, the 1891
Convention apparently will not help much in resolving this
dispute. Similar to Sipadan and Ligitan, the convention does not
appear to firmly govern the ownership of Ambalat. This is because
the 1891 Convention only states that Great Britain and the
Netherlands agreed to admit a boundary line that reaches the east
coast of Borneo.

With regards to the above view, bilateral diplomacy is
apparently the most probable recourse for resolving this dispute.
Even though submitting such case to an international body can be
a good alternative to some extent, it is not always recommended.

Why? First of all, such cases always seem to last at least
four to five, during which time continued bilateral negotiations
might be more productive. Besides, this will also cost a large
amount of money.

Second, sometimes courts produce surprising results. The Gulf
of Fonseca judgment was such a case. First, the court found that
historical bays could be shared by two or more states. Second, it
allowed Honduras, which is clearly locked within the Gulf by El
Salvador and Nicaragua, to claim seas and seabeds in the Pacific
Ocean.

Third, sometimes a court's reasons for making a decision are
obscure.

Indonesia should have learned a significant lesson from the
Sipadan and Ligitan experience, namely the importance and urgency
of international boundary delimitations, particularly maritime
boundaries. This is not only true with Malaysia but also with all
neighboring states. Indonesia currently has 10 incomplete
maritime boundaries with neighboring states. They are: Malaysia,
the Philippines, Palau, India, Thailand, Timor Leste, Singapore,
Papua New Guinea, Australia and Vietnam.

Another urgent step is to list all small islets in the
Indonesian archipelago, and to name every single islet. The
Ministry of Maritime Affairs and Fisheries has been doing this
work for quite some time now. If Indonesia fails to do this, more
of its islands are likely to disappear one by one, claimed by
other states.

No matter what technical procedures Indonesia and Malaysia
employ to resolve the Ambalat dispute, both countries have to
respect each other by attempting to resolve the matter through
peaceful negotiations. A good understanding of the scientific,
technical and legal aspects of the matter by both sides will help
prevent any provocative decisions. This also must be understood
by ordinary people in both countries, to help support the
establishment of a fair resolution.

The writer, a researcher at the Center for Boundary Research
Gadjah Mada University-Bakosurtanal, is currently undertaking
postgraduate studies at University South Wales in Sydney,
Australia.