Abstract
After the settlement of an undeclared war, also known as Confrontation in 1966, Indonesia and Malaysia bilateral relations worked together closely under the new leadership of President Suharto. Indonesia and Malaysia was always known to have a relation of brotherhood, in other words "Serumpun" or solidarity since both countries shares a common language, culture, and also identity. However, despite the solidarity that both countries shares, still, Malaysia and Indonesia appears to have several unsolved dispute especially on the territorial claims in the Celebes Sea (Sulawesi Sea). During the early year of 2005, Malaysia and Indonesia bilateral relations came to a tense when both states were on the preparation of an arm conflict over a maritime territorial dispute which was located in the part of the Celebes Sea (Sulawesi) positioning at the east coast of Borneo (Kalimantan to Indonesia). The emergence of the dispute was related to the competing claims over "Ambalat" which is not an island but an offshore sea area consist a massive hydro-carbon resources. This Ambalat offshore area issue has been said to potential hot spot between Malaysia and Indonesia and has not come to any settlement until present. This sensitive issue has once again caused a conflict when the issue of several fishermen was caught at Bintain Island in mid August this year. With the lost of sovereignty over the Ligitan and Sipadan Island by the Indonesian Government to the Malaysian Government in 2002, both countries are seeing the International Court of Justice (ICJ) role as the last option. Therefore, this paper is attempt to examine in what ways Malaysia and Indonesia can cooperate in solving the Ambalat dispute area, how far Malaysia and Indonesia are willing to cooperate over the disputed area since it involves national interest, so as to identify what are the challenges that both countries are facing in the settlement of the disputed area. Under certain circumstances, the settlement of dispute might be seen to be extremely complex task since it involves the willingness of both states to cooperate with one another's national interest.
KEYWORDS: territorial dispute, hydro-carbon, sovereignty, national interest
INTRODUCTION
Background
Before going into details on the dispute between Malaysia and Indonesia over Ambalat, it would be helpful to if we could look back into the history of Malaysia and Indonesia during the colonial period of the Great Britain over Malaysia and the Netherlands over Indonesia. During these colonial period, the Great Britain and the Netherlands has decided to divide the boundary to these to state over Borneo before the independence of Malaysia (1957) and Indonesia (1945).
The colonies, the Great Britain and the Netherlands decided to divide the Borneo Island into two regions where, the northern part of the island belongs to the Great Britain and the southern part of the island belongs to the Netherlands. After the independence of Malaysia and Indonesia, Malaysia continued to be colonized by the Great Britain and the Netherlands remains as Indonesia's colonial. A map of Malaysia and Indonesia region is shown in Map 1.0 below.
Image21.jpg
Map 1.0: Overview on Malaysia and Indonesia Map
Source: Maps4free
Both Indonesia and Malaysia have been ratified by the United Nations Convention on the Law of the Sea (UNCLOS) 1982, where this convention defines Indonesia as "archipelagic State" which have different maritime zone measured and different with Malaysia as the coastal state. Archipelagic comes for the root word of archipelago which is stated under UNCLOS (1982) as, a State constituted wholly by one or more archipelagos and may include other islands. According to Article 46 of UNCLOS, an archipelago means, a group of islands, including parts of island, interconnecting waters and other natural features which are so closely interrelated that such island, waters and other natural features form an intrinsic geographical, economic and political entity or which historically have been regarded as such [i] .
Maritime zones are measured from relevant baselines to a specified distance in the unit of nautical miles (NM), according to the type of maritime zone under consideration. The LOSC established the following maritime zones, each of which varies in the degree of exclusive rights and control afforded to a coastal state :internal waters (landward of baselines); archipelagic waters (within archipelagic baselines); territorial sea of up to a distance of 12 NM from baselines, contiguous zone up to 24 NM, Exclusive Economic Zone (EEZ) up to 200 NM and Continental Shelf usually to a limit of no more than 350 NM from relevant baselines. A clearer view can be seen in the diagram 1.0 as shown below.
International maritime boundaries are governed by public international law in this case would be UNCLOS, where it has defined the maritime zone costal that may be claimed by a state as follows:
Baseline - boundary from which a nation may begin measurements to determine the closest part of the ocean over which it may exercise sovereignty
Territorial Sea - boundary from which a nation may establish a territorial sea that extends up to 12 nautical miles from the baselines. Within this territorial sea, a nation has exclusives sovereignty over the water, seabed and also airspace. (Article 3)
Contiguous Zone - boundary from which a nation may measure from the baseline to a distance of that may not extend beyond 24 nautical miles. Within this region, a nation may exercise the control necessary to prevent the infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea, and punish infringement of those laws and regulations committed within its territory sea.(Article 33)
Exclusive Economic Zone - the costal State has sovereign rights for the purpose of with regards to economic exploring and exploiting, conserving and managing the natural resources, whether living or non - living. An area which extends seaward to 200 nautical miles which the nation has special rights to use and exploit marine resources such as oil exploration, seabed mining and also fishing. (Article 55 and 56)
Continental Shelf - provisions for which nations to lay claim to a continental shelf that exceeds 200 nautical miles from the baseline by establishing the foot of the continental slope as set forth with the provisions allowed for an extension of an additional 150 nautical miles from the baseline. This can clearly be seen in Diagram 1.1 below. (Article 76)
Regions_of_Ocean_Sovereignty.png
Diagram 1.0: Diagram of the various regions of the ocean over which a State may exercise sovereignty
Source: The Encyclopedia of Earth
However, due to certain circumstances, other vessel may pass through a nation costal line area. The term "innocent passage" under Section 3 of the UNCLOS stated that, the right of innocent passage that is subjected to the Convention is "ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea" (Article 17). Stated under Article 19 of the same section in the Convention, "passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
Stated under the same article, passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the costal State if in the territorial sea it engages in any of the following activities;
Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in Charter of the United Nations;
Any exercise or practice with weapons of any kind,
Any act aimed at collecting information to the prejudice of defense or security of the coastal State;
Any act of propaganda aimed at affecting the defense or security of the coastal State;
The launching, landing or taking on board of any aircraft or on any military device;
Loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
Any act of willful and serious pollution contrary to this Convention;
Any fishing activities;
Carrying out of research or survey activities;
Any act aimed at interfering with any system of communication or any other facilities or installations of the coastal State;
Any other activity not having a direct bearing on the passage.
For the coastal State itself, under Article 21 of the UNCLOS, states. "coastal State may adopt laws and regulations, in conformity with the provision of this Convention and other rules of international law, relating to the innocent passage through the territorial sea, in respect of all or any of the followings;
The safety of navigation and regulation of maritime traffic;
The protection of navigation aids and facilities and other facilities or installations;
The protection of cables and pipelines;
The conservation of the living resources of the sea;
The preservation of the environment of the coastal State and the prevention, reduction and control of the pollution thereof;
Marine scientific research and hydrographic surveys;
The prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
For the coastal States, their duties lies under Article 24, where, "they should not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. The coastal State shall not; (i) impose requirements on the foreign ships which have the practical effect of denying or impairing the right of innocent passage; or (ii) discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any States.
maritime-eng.jpgDiagram 1.1 : Extended Continental Shelf by UNCLOS
Source: Fisheries and Oceans Canada
Looking into the issue on Ambalat the positions of Ambalat is an offshore sea area. Ambalat is not an island but an offshore sea area which consist of a massive oil and gas resources. The case of dispute between Malaysia and Indonesia over Ambalat is referred to the overlapping claiming area between Ambalat and East Ambalat belongs to Indonesia and Block ND6 and ND7 belongs to Malaysia [ii] . With the diagram in 1.1 would help to get a better view on the area mentioned above.
ambalat_map_resized.jpg
Diagram 1.1: Overlapping territorial offshore area between Malaysia and Indonesia
Source: Syamsahawa Nusantara
Malaysia claim over Ambalat block a raised since 1979 where Malaysia maps its maritime boundary. Malaysia published a new map in illustrating Malaysia's claimed land territory and limits of its maritime claims, notably territorial sea and continental shelf. The map was created unilaterally and stimulated protests from its neighbours namely; Brunei, Singapore and Indonesia because its claim excessively discount third countries maritime territories.
The dispute over Ambalat, a part of the Celebes Sea (Sulawesi), positioning at the east coast of Borneo (Kalimantan to Indonesia), between these two countries occurs in the month of February - March in 2005 when the issue of exploration of oil on two blocks, ND6 and ND7 by Malaysia's national oil company Petronas Carigali together with an international partnership with Royal Dutch/Shell Group a well known international giant oil happened on February 16 2005. The exploration area by these two international oil company was claimed to be overlapping with the Indonesian block which were licensed to an Italian and US base oil company in December 2004. The overlapping are is not in a small area but to an extend of large area as shown in the picture below. Therefore, the conflicting claims over the maritime boundary territory highlights the potential risk of conflict in the region which provides a strong motivation to enter join development should be considered by both countries.
Problem Statement
Malaysia and Indonesia appears to have several unsolved dispute especially on the territorial claims in the Sulawesi Sea. The Ambalat offshore area issue have been said to potential hot spot between Malaysia and Indonesia. The dispute over this offshore areas has not come to a solution since the occurrence in 2005. The over lapping claim over Block ND6 and ND7 was said to be due to the factor that this claimed area contribute a lot of nature resources of oil and gas. The sensitive issue of Ambalat once again cause conflict between the two countries when the recent issue of several fisherman were caught at Bintan Island happened. Judging from newspaper, reports and various other sources, Malaysia and Indonesia are in the favor of settling these territorial dispute. Therefore, this study is to provide some answer to several questions that has been addressed by the researcher, (I) in what ways Malaysia and Indonesia can cooperate in solving the disputed area, (II) how far Malaysia and Indonesia are willing to cooperate over the disputed area since it involves national interest and (III) what are the challenges that Malaysia and Indonesia to settle the dispute over Ambalat and how both countries can secure each other maritime borders.
Research Questions
In what ways Malaysia and Indonesia can cooperate in solving the disputed area?
How far Malaysia and Indonesia are willing to cooperate over the disputed area since it involves national interest?
What are the challenges that Malaysia and Indonesia to settle the dispute over Ambalat and how both countries can secure each other maritime borders?
Research Objectives
The three following points are the objectives of this research:
To determine what are the solutions that Malaysia and Indonesia can cooperate to secure their maritime borders.
To identify what are the benefit or interest of the disputed area to Malaysia and Indonesia.
Analyzing the potential challenges that Malaysia and Indonesia are facing in solving the maritime border dispute.
Assumptions
The Ambalat case is a maritime boundary conflict because Indonesia and Malaysia claim the same maritime zones (resulting in a zone of overlapping claims) where the block situates. Ambalat is not the case of a dispute over sovereignty but one where sovereign rights to explore and exploit maritime zone and natural resources deposited are at issue. Hence, the intention of Malaysia and Indonesia to overcome this territorial dispute diplomatically can result to a peaceful settlement that will benefit both countries.
Literature Review
When looking at the earth from space, one fact is obviously seen that water is the dominant feature. About 80 percent of the sea dominates Southeast Asia roughly [iii] . The Southeast Asia region is also to be said one of the most complex structures when it come to distributions of land and water [iv] . Maritime border issues have never been able to be solved peacefully without the existence of conflict between the two or more neighbouring countries. In fact, dispute over maritime boundaries over the landscape if Asia is causing a serious challenge between the neighbouring countries especially in the Southeast Asia region.
Southeast Asian region, with its numerous large and small island divides the waters into different seas which are connected by many channels, passages and also straits. Southeast Asia's major sea would be the South China Sea which is situated in the Central North area surrounded by Vietnam, China, the Philippines and also Malaysia. Indonesia and the Philippines, two Southeast Asian countries which has the characteristic of archipelagos regions are surrounded by numerous of different seas. Indonesia is surrounded by seven (7) seas namely, the Java sea, the Bali sea, the Flores sea, the Moluccas sea, the Halmahera sea and also the Banda sea [v] . As for the Philippines, the Celebes and Sulu sea are the two major sea surrounding this region. For straits in South China Sea, straits of Malacca and Singapore, is one of the most famous and well known straits in the world. These two straits are the most used straits in the Southeast region.
Countries like Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and also Vietnam are countries that are situated in the Southeast Asian region. These ten (10) countries join together to form an association known as Association of Southeast Asian Nations (ASEAN). According to ASEAN official website, ASEAN was established on 8 August 1967 by the founding fathers of ASEAN, Indonesia, Malaysia, Philippines, Singapore and Thailand. The other five remaining countries like Brunei (1984), Laos (1995), Myanmar (1997) and Cambodia (1999) joined the association in separate years. Even with the establishment of the ASEAN community, as countries in the South China Sea regions, all these ten (10) neighboring countries are competing against one another over their maritime borders.
With a total area of 330,252 square kilometers (sq. km), the land of Malaysia are divided into two which where (I) is the West Malaysia or also known as Peninsula Malaysia and (II) West Malaysia on the Borneo Island [vi] . East and West Malaysia are separated by the South China Sea and involves in territorial disputes with its neighboring countries like Indonesia, Thailand, Singapore and Brunei. Starting from the Gulf of Thailand, the Andaman Sea, the Straits of Melaka, the Straits of Singapore, the South China Sea, the Sulu Sea and until the Celebes Sea are the maritime and territorial disputes that Malaysia is facing.
After receiving it's independent on August 1957, Malaysia acceded to UNCLOS on December 21, 1960, adopted the Continental Shelf Act on July 28, 1966 and had proclaim the extension of the territorial sea from 3 nautical mile to 12 nautical mile on August 2, 1969 [vii] . A new map of Malaysia was established on December 21, 1979 called Peta Baru Menunjukkan Sempadan Perairan dan Pelantar Benua Malaysia, (New Map Showing the Territorial Waters and Continental Shelf Boundaries of Malaysia) [viii] . However, despite the establishment of the new map by Malaysia, almost all of its neighboring protested against it.
Indonesia is the largest archipelagic state in the world [ix] , consisting of 17,508 island where only 5,707 islands that has been named [x] . According to Victor Prescott in his book [xi] mentioned that, only Indonesia and the Philippines are the archipelagic states fringing the South China Sea. Both countries drew their baselines in 1960s and these baselines fits the content of Article 47 in UNCLOS.
Looking at the unsolved dispute that Malaysia and Indonesia are currently having, Ambalat position as an offshore area of hydro-carbon will clearly generate economic benefits to both states. Other then the interest of state sovereignty, states national interest is one of the supporting factors of the dispute. The statement of "states acts in their national interest" is true [xii] , however, we must know how Malaysia and Indonesia define their national interest. From a realist thinking, a state's position in the international system determines its national interest whereas, liberalist and constructivist argue that, a state's national interest is much more than just a state's position in the international system, where national interest depends in large part on the type of on the type of domestic society and culture that a state has [xiii] .
Looking into the dispute of Ambalat, Malaysia and Indonesia are having their own interest, which is the national marine interest. Sukhakanya in his article [xiv] mentioned that, there are three (3) factors influencing national perception of ocean interest which are; (i) technological progress in marine usage ad resources exploitation capabilities. (ii) increased national awareness and expectations of potential ocean resources and (iii) indications that a "common property' approach to ocean resources may be inefficient and advantageous to developed countries. He also added that, most ocean resources and activities are under the control of the individual states and the Southeast Asia region is a very good example to look into.
However, to certain circumstances, extended transnational jurisdiction does not alter three (3) factors which are; (i) marine resources are transnational in distribution; (ii) the ocean as a continuous fluid system transmits environmental pollutants and impacts; and (iii) maritime activities often transcend national maritime boundaries and this will create opportunities for international cooperation or conflicts [xv] .
As mentioned above, Malaysia and Indonesia are having their own national marine interest over their maritime territory. For Indonesia, being the world's largest archipelagic state, which means, with Indonesia's current position, it would be very difficult from Indonesia to patrol its territorial boundaries. In addition to this, Indonesia also has the longest costal line, requires the largest offshore area and also the EEZ principle. In fact, not only being the world largest archipelagic states, Indonesia is also one of the largest state with a large population within the Southeast Asian region.
Most Southeast Asian countries are depending on fisheries industries for the as one of the contributions to their countries economic system. As for Indonesia, not only depending the fishery industries as their only economic contribution, they also depend much on the offshore hydro-carbon production that they have. Indonesia's national marine interest would be to win acceptance of its archipelagic state characteristic concept by the neighboring countries and also the external maritime powers. Indonesia can be said to be taking its special archipelagic characteristic as an opportunity, since they are seeing this concept as an essential to is unity [xvi] .
Indonesian national marine interest are also due to the term "transit passage". Article 38 under UNCLOS, stated that, "all ships and aircraft enjoy the right to transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone similar convenience with respect to navigational and hydrographical characteristics" [xvii] .
In other words, transit passage means, the freedom of navigational that other States may pass through for the purpose of continuous and expeditious transit of the strait between on part of the high seas or an exclusive economic zone [xviii] . However, this freedom of navigation also requires certain circumstances which this transit does not preclude passage through the strait for the purpose of entering, leaving or returning from States bordering the strait, subject to the conditions of entry to that State. (Article 38: UNCLOS)
Of course Indonesia except the concept of this transit passage, however, what makes Indonesia more concern is when Taiwanese, Korean, Japanese and Thai vessels wishes to transit and fish within Indonesian territorial water as well [xix] . Indonesian strictly stated that, any transit vessel must not deviate a specific distance from the axis of a sea lane, otherwise, this these transit vessel will be suspended if they are found to be fishing or doing any undesirable activities. For the Indonesian, this is their national security interest in protecting their national marine resources.
Malaysia on the other hand, the limited access and communication between the separated water state, Peninsular Malaysia with Sarawak and Sabah as their national security. Other national marine interest by Malaysian are the environmental protection of the straits, especially the Strait of Malacca, offshore drilling and also the mineral exploitation which are also a high priority. Not leaving behind, the fishing capabilities as their national marine interest since the fishing industries is one of the contributions to Malaysian economic system.
According to Dhawon Sukhakanya, even though piracy are regarded as a security threat to the Southeast Asia water region, the most major and serious security threat to this region are the territorial conflicts. Competing territorial island claims from countries like China, Taiwan, Vietnam, the Philippines, Malaysia, Indonesia and Brunei are not only for the purpose of the marine and seabed resources but also as a strategic importance in maintaining their security. In additional to this, scrambling issues between nations over the South China sea are not only for the purpose of maintaining the nations security but also of the economic.
This region was believed to be said as one of the most riches region with oil, gas as well as fish. However, despite the richness in natural resources, according to Lieutenant John F. Bradford, a U.S Navy, he stated that, the sea is also the source of variety if dangers that not only menace the prosperity of local populations but directly threaten the security of states [xx] . Territorial dispute, non-state political violence, transnational crime and also environmental degradation are listed as a source of variety dangers that may threaten the security if a states.
Theoretical Framework and Key Concept
The theoretical framework that the researcher would use for research would be by looking at the following concepts:
Concept of Law
The first key concept that would be based on law. In the world of oceans and seas, establishing rules governing all uses of the oceans and their resources. This refers to the 1982 United Nations Convention on the Law of Sea (UNCLOS). Under UNCLOS, states must exercise sovereignty over their territorial sea which is limited to 12 nautical miles from their baselines. States also have the sovereignty rights of 200 nautical miles over an exclusive economic zone (EEZ) with respect to natural resources and certain economic activities, however, foreign vessels are allowed "innocent passage" through those waters.
Concept of Interdependence
The second key concept that can be applied for the maritime dispute between Malaysia and Indonesia over Ambalat is Liberalism and interdependence . The disputed area involves hydrocarbon resources that would contribute to both Malaysia and Indonesia national income. In liberalist thinking, the priority of a state is not only the national security but also in economic, social, modernization and ecological issues arising from the growth of interdependence. Liberalist thinking also stated that peace can be maintained through economic interdependence.
According to Viotti, interdependence is a situation whereby actions and events in one state, society, or part of the world affect people elsewhere. Interdependence refers to "situations in which actors or events in different parts of a system affect each other," or in other words, mutual dependence [xxi] . The concept of interdependence can be originate into two namely in physical (natural) or social (economic, political or perceptual) phenomena [xxii] .
Interdependence can be expressed into two, (I) zero sum and (II) non- zero sum, where in zero sum, one state will win over the other states and vice versa. The term of positive - sum refers to the situation where both countries win while the term of negative - sum means that both countries lose.
Research Methodology
The approach of this paper will mainly be qualitative. The combination of material obtained from both primary and secondary sources. The primary sources that will be use as the main sources for input will be generated from interview that will be conducted. Other primary sources would be from speeches, classified reports.
The use of secondary sources included open sources such as research paper, newspaper reports and articles, information form internet, books and journal article of official documents which are gather from libraries at Institute of Diplomacy and Foreign Relation (IDFR) and also University Kebangsaan Malaysia (UKM). The researcher will also attempt for collecting and gathering much more information from the Maritime Institute of Malaysia (MIMA), the Institute of Strategic and International Studies as well as from the Ministry of Foreign Affairs Malaysia (WISMA PUTRA). The researcher believes that, these libraries will have fairly good collections of books and journals that is relevant for this search. Not leaving behind the collections of information from the internet resources as well.
Significant of Study
This research is worth doing mainly because to get a precise and depth understanding of the issue of maritime dispute between Malaysia and Indonesia. The findings of this study would be beneficial for the countries for implementation in the future. Identification of possible solution in resolving the dispute will also be useful of the countries for better understanding of the problem and be able to come up with a better future plan in order to overcome the push factors.
Limitations
The researcher has to admit that there would be some limitation in order to complete this whole research. Some of the factors are; (i) time constraint, due to a short durations of the course program, there are time constraints for the researcher to complete the research since the requirement to complete the course is both coursework and research method and the research completions takes a long time; (ii) budget constraints, since the researcher has no scholarship, budget constraints is one of the limitations that the researcher is facing.; (iii) information constraint; where, due to limitation of research by other scholars on the subject matter that the researcher is willing to study, most of the sources are base on online/internet sources and (iv) language translation constraints, some of the sources gathered are mostly in Indonesian language, therefore, the researcher finds it time consuming to translate the language properly in order to avoid wrong interpretation.
Organization of Chapters
Since the research that the researcher is interested to study has not fully completed, in order to get a brief idea on the content of the research, the outline of the chapters has been made by the researcher. In chapter II, the research will discuss on the overview of the historical dispute that Malaysia and Indonesia faced from the days that both states are still under their colonials until present. The researcher will discuss into depth on the undeclared war or also known as "Confrontation", the case of two island Sipadan and Ligitan, which both state agrees to seek International Court of Justice for settlement of dispute and the researcher will also discuss the case of Ambalat in more details.
As for chapter 3, the researchers attention is to analyze the challenges that Malaysia and Indonesia are facing in solving their maritime border dispute. For chapter 4, the researcher will analyze what are the mechanism in solving the dispute and as for chapter 5, the researcher will conclude the research based on the findings that has been gathered from the previous chapter as well as some recommendation.
