Planet Geo Indonesia

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Best Regards,
Andi Arsana

The 33rd International Geological Congress will be held in Oslo, Norway on 6-14 August 2008. One of the session will be the UNCLOS Symposium which deals with legal and technical issues concerning extended continental shelf. Clive and I are coauthoring a joint paper to be presented in the session.

The journey to Europe is planned to include a visit to The Max Planck Institute, in Germany and NILOS, in the Netherlands. Arrangement is currently being made with parties in both institution.

Schengen visa has been secured from the Danish Consulate General in Sydney. Travel grant is provided by the AusAID, Faculty of Law - UoW, RSC - UoW and ANCORS - UoW.

Here is the abstract for the presentation:

Smooth sailing or choppy waters ahead?
Indonesia’s Voyage Towards a Submission to the United Nations Commission on the Limits of the Continental Shelf

I Made Andi Arsana and Clive Schofield


Abstract

Indonesia is currently engaged in preparing its submission to the United Nations Commission on the Limits of the Continental Shelf (CLCS) in respect of its claims to sovereign rights over continental shelf areas beyond 200 nautical miles from its archipelagic baselines, the deadline for which is 13 May 2009. The paper outlines the development of Indonesia’s ECS claim and details the current status of the submission preparations. In particular the paper explores the institutional, financial, political, legal and technical challenges faced by Indonesia in this context and assesses the strategies adopted by the Indonesian team charged with preparation of the submission to the CLCS to overcome them.


Keywords: extended continental shelf, LOSC, Article 76, CLSC, submission, formulae, constraint, Indonesia maritime boundaries

Opinion in the Jakarta Post, Thu, 07/17/2008 10:10 AM

On June 16, 2008, Indonesia made a submission to the UN Commission on the Limits of the Continental Shelf (CLCS) regarding its claim to continental shelf rights beyond 200 nautical miles of its coast.

This was done in accordance with Article 76 of the UN Conventions on the Law of the Sea (UNCLOS). As part of the submission, a coastal state has to delineate the outer limits of its continental shelf.

The above process is commonly recognized as an "extending maritime claim". However, Indonesia is not extending its maritime area, but confirming its limits beyond 200 miles.

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While working seriously on the establishment of maritime boundaries with its neighbors, Indonesia is also, confirming its extended continental shelf (ECS). According to Article 76 of the United Nations Conventions on the Law of the Sea (UNCLOS), Indonesia, being a coastal state, is entitled to continental shelf (seabed) beyond 200 nautical miles (M) from its baselines. For this purpose, a coastal state should delineate the outer limits of its continental shelf and make a submission to the Commission on the Limits of the Continental Shelf (CLCS) through the UN Secretary General. Indonesia made a submission on 16 June 2008 and CLCS will subsequently consider the submission and provide recommendations.

Commonly, the delineation process is also recognized as ‘extending maritime claim’, which is not necessary the case. Indonesia is not extending its maritime area, but only confirming its outer limits beyond 200 M. For continental shelf, a coastal state secures sovereign rights for exploration and exploitation, which “do not depend on occupation, effective or notional, or on any express proclamation.” (UNCLOS, Article 77)

Indonesia is the twelfth state that submits its ECS after the first submission made by the Russian Federation in 2001. Approaching the deadline of submission on 13 May 2009 for those who ratified UNCLOS before 13 may 1999, many more submissions are coming to the desk of CLCS in New York. Executive summaries of all submissions are available on the website of CLCS for all other states to respond.

After a long preparation, Indonesia finally submitted its ECS to the UN for the area to the north-west of Sumatra. As indicated, it was a partial submission, meaning that Indonesia is planning to make other submissions in the near future. It is anticipated that two more submissions will be made before 13 May 2009: south of Nusa Tenggara and north of Papua. Indonesian team for ECS is now working on technical and non-technical aspects for the two, which require a lot of resources.

With regards to submission deadline, the latest Meeting of States Parties to UNCLOS decided that a coastal state may submit “preliminary information indicative of the outer limits of the continental shelf” together with “a description of the status of preparation and intended date of making a submission” (SPLOS/183). This confirms that a coastal state does not have to provide all supporting data and documents by the deadline (13 May 2009) but instead, can provide preliminary submission or even an indication of submission. All supporting data and documents can be provided at a later time. In this case, the original deadline does not change but the requirement of submission is significantly easier.

Indonesia’s submission is the first one made by Asian states and is considered as one of the earliest submissions by developing states. To some extents, the submission can be a good influence for other developing states, which are struggling with technical and financial difficulties. No matter what CLCS’ response will be, Indonesia’s submission deserves appreciation and is a sign of hope in desperation among developing states.

With regards to Indonesia’s submission, one important issue that may raise is the area of ECS submitted. It proposes an ECS of 3915 km², which roughly equals the large of Madura Island. From a sovereign rights perspective, where Indonesia can only utilize natural resources and does not have full sovereignty, such area may seem insignificant. It can easily spark question, why would Indonesia claim such a small area after spending a lot of resources for preparation that took around ten years to accomplish?

To understand the situation, one should know how complicated it is to establish the outer limits of ECS. Article 76 specifies complicated procedure that involves bathymetric and seismic survey (CLCS/11). Even though desktop study might helps in the preliminary process, the real ECS can never be known without real surveys. Technical survey, which is expensive, is required to know precisely whether Indonesia can have ECS. Therefore, after a complicated and expensive process, the size of claim should not stop Indonesia from making a submission. In addition, the current submission is only one of the total three potential submissions.

Furthermore, ECS is a future investment. Prescott (2008), an internationally-renowned maritime boundary expert, states that “we must take the long view”. At present, we might not know what lies beneath, but we can always expect something precious in the future. Furthermore, this is a good opportunity for Indonesia to confirm its sovereign rights as it will be final and binding, once the delineation is made on the basis of CLCS’ recommendation. If it is not now, Indonesia may lose the opportunity.

What can Indonesia expect from the extension? No detailed research has been done to the proposed area so that it is too early to judge. However, in theory, there are a lot of potential resources in and on the seabed, both living and non living. Oil and gas are two traditional resources that can be explored. Furthermore, the deep seabed is unique environment where organisms with special characteristics live. The behavior, process and activities they demonstrate can be subjects of researches that may be useful for human being. In short, a coastal state can make use of any living and non-living organisms that live on (attached) or under the surface of the seabed.

To sum up, the submission of ECS by Indonesia is good news for other developing states, which are currently preparing their submissions. It can also be a positive motivation, to an extent. It also brings hopes for Indonesia in the future for any potential resources to harvest. However, we can not hold our breath since there is still a long way before CLCS can make recommendation on the submission. Let us hope for good result.

The day has come. Indonesia finally submitted the outer limits of its Extended Continental Shelf to the Commission on the Limits of the Continental Shelf (CLCS). The submission was made on 16 June 2008 after a 9-year preparation. The Ambassador Marty Natalegawa lodged the document to DOALOS and was received by Mr. Miculca, the director.

A 10-page executive summary of the submission is now available in the website of CLCS for other parties' interest. The executive summary is reasonably short but concisely informs key points of the Indonesia's submission. The submission covers the area to the north west of Sumatra, encompassing a reasonably small area of continental shelf. The summary containing the map of the area can be downloaded from the website of CLCS.

The submission made by Indonesia was a partial one and more submission will follow before the deadline is due, which is 13 May 2009. The Indonesian team consisting of various institutions is now preparing for the other submission.

As per today, not much to say about the submission and no response has been made so far by other countries. Furthermore, the submission will be considered by the Commission in its session in 2009. There is still a long way to go. No matter what, it is a great move by Indonesia and it deserves an appreciation. Congratulation for the submission and fingers crossed for the result.

See also this article published in the Jakarta Post.
A big decision has been made. The International Court of Justice decided to award Pedra Branca (PB, aka. Pulau Batu Puteh) to Singapore on 23 May 2008. However, it was not a complete defeat for Malaysia since it is given Middle Rocks (MR). Meanwhile, the sovereignty over the third feature disputed, South Ledge (SL), has not yet been decided.

The case of sovereignty over PB, MR, and SL was brought before the Court in 2003 by Malaysia and Singapore. The three features located in the eastern entrance of Singapore Strait have been subject to dispute for approximately 28 years. Public hearing was done in The Hague, The Netherlands, on 6-23 November 2007 where the two states addressed their arguments. The decision was made by vote approximately six months later. PB is considered as the main feature in the dispute, so that it makes sense when the decision is called as Singapore’s victory.

This case, to an extent, may remind us to a similar case involving Sipadan and Ligitan, decided in 2002 between Indonesia and Malaysia. Unlike the case where Malaysia won the two small islands, in this current decision, Malaysia had a bitter pill to swallow. However, no matter what the result is, this is a significant progress concerning sovereignty dispute resolution made by countries. It is interesting to know how ICJ could finally decide the sovereignty over these disputed features.

The Court initially concluded that the sovereignty over PB was, in the earlier time, with the Johor Sultanate, which is now part of Malaysia. After observing the history of Johor Sultanate and the Dutch and British activities regarding control of South East Asia and also the role of the East India Company, the Court concluded “the Sultanate of Johor had original title to Pedra Branca/Pulau Batu Puteh.” (para. 69 of the Judgment) Therefore, this conclusion was also an objection to Singapore’s previous argument that PB was terra nullius (ownerless), so that it was eligible for a “lawful occupation”.

However this initial conclusion did not lead to a decision to award PB to Malaysia. One of the reasons is the letter dated on September 21st, 1953 sent by the Acting State Secretary stating that “the Johore Government does not claim ownership of Pedra Branca.” (para. 196 of the Judgment) This letter was a reply to a letter sent previously by Colonial Secretary of Singapore to the British Adviser to the Sultan of Johor concerning status of the island. This letter of September 21st, 1953 became the key for the Court to conclude that Sultan of Johor disclaimed sovereignty over PB and then concludes that “the authorities in Singapore had no reason to doubt that the United Kingdom had sovereignty over the island.” (para. 233 of the Judgment)

The reason of the Court in deciding the case may be debatable, but the decision is final and binding. Like it or not, both parties should accept it. This has, of course, been agreed upon prior to bringing the case before the Court. If the decision is unquestionable, so what is next? The interesting step to watch is the delimitation of maritime boundaries in the Singapore Strait in the aftermath of the big decision by the Court.

It has been widely understood that the strait where those three features located is a busy shipping route. Therefore the certainty of sovereignty and sovereign rights over maritime area around the features is undoubtedly important. Hence, the delimitation of maritime boundaries among three relevant parties: Indonesia, Singapore and Malaysia is important. This will, hopefully, generate definitive line dividing maritime areas under each country’s jurisdiction.

It is worth recalling that Indonesia and Malaysia agreed seabed boundaries in the area in 1969 generating a line starting from point 11 (around 12 km to the east of PB) heading northeast in the South China Sea. In 1973, Indonesia also concluded a maritime boundary with Singapore consisting six points where the eastern tip of the line is point 6. Simply speaking, there are some pending boundary segments that these three neighboring states need to settle.

In a technical perspective, line delimiting maritime space in the area can be constructed by equidistance principle (or median line) considering that it also deals with territorial sea (up to 12 nautical miles from baseline/coastline of each state) as it is indicated in article 15 of the United Nations Convention on the Law of the Sea (UNCLOS) 1982. Meanwhile, for maritime area beyond 12 nautical miles, (exclusive economic zone, and continental shelf) “equitable solution” is suggested by article 74 and 83 of UNCLOS and equidistance is not always necessarily equitable. For this purpose, Indonesia, Malaysia and Singapore will need to sit together or bilaterally for negotiation.

Some relevant considerations may include a) the fact that these three features are reasonably small and lay in an ‘inconvenient’ position that may complicate the delimitation, b) the possibility for these three features to generate their own maritime claims (territorial sea, exclusive economic zone, and continental shelf), and c) existing maritime boundaries among the three neighboring states. No matter how difficult it is for the three states to delimit their maritime boundaries, the immediate process will, undoubtedly, be better for all. Certainty in maritime division will provide each state with clarity in utilizing and managing maritime resources. The good will and good faith of the neighboring states will be the key for future delimitation.

I Made Andi Arsana, Jakarta, Mon, 05/26/2008 10:19 AM

Australia has just been confirmed by the United Nations for its maritime extension. Almost all Australian media released news concerning the extension and some even wrote provocative headlines. The Australian (April 21), for example, stated "Australia expands into new territory". Is it territory that Australia expands?

The term "territory" here did not refer to land territory. In fact, the use of the word "territory" here is inappropriate since the extension concerns the maritime area beyond 12 nautical miles (M) from baseline (coastline). Australia, in fact, has not expanded its territory in terms of sovereignty but maritime jurisdiction (continental shelf or seabed) in the sense of sovereign rights. While for sovereignty a coastal state exercises full control over a certain area, for sovereign rights such coastal states do not have full control but merely utilize resources with particular responsibilities.

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Pada tanggal 23 Mei 2008, Mahkamah Internasional (ICJ) telah memutuskan bahwa Pulau Batu Puteh yang disengketakan oleh Malaysia dan Singapura akhirnya diberikan kepada Singapura. Keputusan ini dinyatakan oleh ICJ yang berkedudukan di The Hauge, seperti dapat dibaca dalam press release dan keputusannya sendiri.

Satu dari dua obyek lain yang juga menjadi sengketa yaitu Middle Rock diputuskan menjadi milik Malaysia. Sementara itu, South Ledge yang merupakan elevasi pasut (tenggelam ketika air pasang dan muncul hanya saat air surut), belum diputuskan kepemilikannya. Kepemilikian South Ledge tergantung dari hak atas laut teritorial tempat South Ledge berada. Jika laut teritorial tempat South Ledge berada terbukti merupakan kewenangan Malaysia maka South Ledge akan menjadi milik Malaysia, demikian pula jika seandainya Singapura yang berwenang atas laut teritorial tersebut.

Meskipun Malaysia mendapatkan Middle Rock, hal ini, oleh beberapa pihak, tetap dianggap sebagai kekalahan Malaysia karena obyek kunci dalam sengketa adalah Pulau Batu Puteh atau Pedra Branca (nama yang dikenal oleh Singapura). Meski demikian, hasil keputusan ini juga diistilahkan sebagai "win win solution" karena keduanya sama-sama mendapatkan bagian. Gambar berikut mengilustrasikan posisi Malaysia, Singapura dan Indonesia serta Pedra Branca yang dulu menjadi sengketa.

Lepas dari hasil yang tentunya menggembirakan bagi satu pihak sekaligus membawa kekecewaan di pihak lain, keputusan ini merupakan sebuah penyelesaian sengketa yang patut diapresiasi. Setelah kurang lebih 28 tahun menjadi sengketa, Pedra Branca akhirnya dikeluarkan dari daftar panjang sengketa pulau dalam hubungan antarbangsa. Dengan demikian, Malaysia kini bisa dengan leluasa dan sah melakukan eksplorasi di perairan sekitar Middle Rock yang sebelumnya tidak jelas kewenangannya. Demikian juga dengan Singapura, pengelolaan Mercusuar di Pedra Branca kini menjadi jelas legalitasnya.

Menilik kejadian serupa hampir enam tahun lalu, Malaysia ternyata tidak berhasil mengulang kesuksesannya memenangkan sengketa atas kepemilikan pulau. Ketika itu, Malaysia memenangkan kedaulatan atas Pulau Sipadan dan Ligitan yang disengketakan dengan Indonesia. Setelah melalui usaha negosiasi yang panjang, Malaysia dan Indonesia juga bersepakat untuk membawa kasus tersebut ke ICJ yang akhirnya dimenangkan oleh Malaysia.

Sama halnya dengan kasus Sipadan dan Ligitan, Malaysia dan Singapura hanya meminta ICJ untuk menentukan kepemilikan/kedaulatan atas pulau yang disengketakan tetapi tidak memintanya menentukan batas maritim. Mengingat delimitasi batas maritim akan merupakan sesuatu yang tidak mudah dilakukan, keputusan ICJ ini belum sepenuhnya menyelesaikan sengketa antara dua negara. Dalam hal ini, persoalan tetap ada termasuk dengan Indonesia yang merupakan negara terdekat dengan keduanya. Batas maritim di sekitar Pedra Branca tentunya sebagian besar merupakan urusan Malaysia dan Singapura tetapi tetap akan memerlukan keterlibatan Indonesia pada lokasi tertentu yang merupakan titik temu tiga atau tri-juction point.

Delimitasi batas maritim di kawasan laut sekitar Pedra Branca merupakan agenda selanjutnya yang harus diprioritaskan oleh Malaysia, Singapura dan juga Indonesia. Batas maritim ini penting karena akan menentukan kewenangan atas wilayah laut masing-masing negara di kawasan yang sangat sibuk dengan pelayaran. Kita tunggu bagaimana penyelesainnya nanti.

Malaysia has ruled out the possibility of the International Court of Justice helping in negotiations with Indonesia over a disputed oil-rich area on their maritime border.

Presenter: Bo Hill
Speaker: I Made Andi Arsana, lecturer, Department of Geodesy and Geomatic Engineering, Gadjah Mada University

HILL: In 2004 and 2005 respectively, Indonesia and Malaysia awarded oil and gas exploration licences in the area of sea between Indonesia's East Kalimantan province and Malaysia's Sabah state. In the rush for energy resources, the two growing economies had, however, handed out licences for areas that overlapped. It prompted a military stand-off defused only by leaders Abdullah Ahmad Badawi and Susilo Bambang Yudhuyono. They pledged to resolve the dispute peacefully through negotiations. I Made Andi Arsana, a maritime border specialist and lecturer at the Gadjah Mada University in Yogyakarta, says in the three years since there has been a lot of talk but not much resolution.

ARSANA: Indonesia and Malaysia have been conducting years of negotiations - as far as I know it has been more than five times. It's very intensive negotiations, at the very beginning they did it like every three months but then, you know, the frequency is getting lower.


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