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Damos Dumoli Agusman and Gulardi Nurbintoro[1]

            Every 13 December we are commemorating the day in 1957 when Prime Minister Djuanda proclaimed Indonesia’s new maritime approach. The proclamation, later known as the Djuanda Declaration, established that Indonesia has the lawful right to draw baselines connecting the outermost points of its outermost islands and that the waters within that baselines fall under Indonesia’s sovereignty.
            The Declaration, obviously a departure from the then well-established international rule of drawing territorial sea from each island instead of an archipelago, was met with worldwide protests.   Conscious of the winding journey in finding international recognition, Indonesia was actively engaged in various multilateral and bilateral forums in order to ensure that Indonesia’s proposal would be accepted.
            One of the means was to sought recognition through maritime boundary delimitation. In 1969, Indonesia and Malaysia agreed to a continental shelf boundary in the Strait of Malacca and the South China Sea. It took both countries only a couple of months of negotiations until the agreement was reached.  The maritime boundary agreement opened the path to another bilateral treaty in 1982 in which Malaysia firmly recognized Indonesia’s archipelagic State concept.
            Since the 1969 signing until now, Indonesia remains committed to the settlement of maritime boundary delimitation with its neighbors. History shows that the negotiations were not always smooth and easy. Although the negotiation on continental shelf boundary with Malaysia was resolved quickly, it was not the case for the maritime boundary in other areas. Indonesia and Malaysia have yet to agree on a delimitation line in the Ambalat area. Another example, it took 30 years for Indonesia and Vietnam to reach an agreement on a continental shelf boundary which was signed in 2003. Since 2010, both countries are still negotiating an Exclusive Economic Zone boundary.
            There are various factors that come into play when determining whether the boundary can be concluded promptly or not. First, the willingness of the States concerned. Regardless how eager Indonesia is to conclude a maritime boundary, it will never happen when the other State is not willing, and Indonesia must respect this. At the end of the day, it takes two to tango.
            Second, legal issues. Since the adoption of UNCLOS in 1982, the international legal basis for delimiting a maritime boundary mainly refers to the provisions of UNCLOS. The provision for the delimitation of territorial sea is governed by article 15, while the delimitation of the Exclusive Economic Zone and the continental shelf is governed under articles 74 and 83 respectively.
While there is usually no legal question with respect to the delimitation of territorial sea, there remains an issue on the use of single boundary line for the delimitation of Exclusive Economic Zone and the continental shelf. Indonesia believes that separate lines should be drawn for delimiting each zone as the continental shelf and Exclusive Economic Zone are two different regimes under UNCLOS. Also, the International Court of Justice, while applying a single boundary line since the Gulf of Maine Case in 1984 until the most recent delimitation case of 2018, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean between Costa Rica and Nicaragua, had never stated that single boundary line is customary international law. Indonesia’s position is not shared by all its neighboring countries, hence the need to allocate some time to negotiate on this issue alone.
Third, technicalities issues. Once both countries agreed to commence the delimitation negotiations, negotiators are left with the technical issues. This is the part where both sides have to agree on the use of basepoints and baselines. The process will then be followed by the negotiations on the proposed median line. Arguments and counter-arguments will usually take place on why certain basepoints and baselines should or should not be used. This will take some time.
Fourth, a border treaty to be agreed and signed will be a sacred document. It is not a treaty in ordinary sense. Once it is concluded it must be forever and hardly to be terminated even for a good reason. Under Vienna Convention 1969 on the Law of Treaties has stipulated that even a fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty that establishes a boundary. To some extent it will make negotiators more cautious and think more than twice in making any final words. Furthermore, whatever they agree on the negotiation table should be made accountable to their respective constituents especially Parliament. They need ample time to say yes.
But one cannot deny that in terms of maritime boundary agreements, Indonesia is the most prolific country in the Southeast Asian region. Overall, Indonesia has entered into 18 delimitation agreements on various maritime zones with Australia, India, Malaysia, Papua New Guinea, the Philippines, Singapore, Thailand, and Vietnam. However, not all maritime zones have been yet delimited with those countries. Also, no maritime boundaries have been delimited with Palau and Timor Leste.
It is true that the pending boundaries is a homework for the Indonesian Government. However, the public must understand that delimitation is not a simple undertaking as it involves various factors. The negotiators are always guided by the precautionary principle to ensure the result of the negotiations will not be to the detriment of the Indonesian people. At the same time, rest assured that Indonesian negotiators are keen and committed to settle all maritime boundaries in order to accomplish the Djuanda Declaration.      

[1] Damos Dumoli Agusman and Gulardi Nurbintoro earned their doctoral degree from Goethe University of Frankfurt in Germany and the University of Virginia in the United States, respectively. Both are Indonesia’s negotiators for maritime boundary delimitation. 


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