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.