03 September 2010

Indonesia – Malaysia Bilateral Ties

“The Impacts of the Past Unfinished Business”

1.The Unspoken Histories

The famously known “Ganyang Malaysia”3, a political phrase sounded firstly by Soekarno during the Indonesia-Malaysia conflict within 1961-1966 probably would have become one of the most provocative anthem about the two countries sentiment during these days. What makes this two “Negara Serumpun” became such a long time enemies that have never been found any slightest solutions?

The other well known political phrase from Soekarno was “JAS MERAH : Jangan Sekali-kali Melupakan Sejarah”4. Bearing in mind that Soekarno’s phrase, to analyze the basic problems between Indonesia and Malaysia, it is important to summarizing the historical moments between these two Southeast Asia’s members (which oftenly being ignored by some people).

The relations between Indonesia and Malaysia consists of various matters ranging from borderlines, migrant workers (especially women), cultural claims, and the latest one : Marine and Sovereignty.

2.Marine Issue : A Crucial Point for State’s Sovereignty

The conflict between Indonesia and Malaysia raised (again) on Friday, August 13th, when three officers of the Indonesia’s Fisheries Ministry were arrested by the Malaysian sea patrol as a response over Indonesia’s action in apprehending seven Malaysian fishermen who entered the Indonesian waters. This was happened at Tanjung Barikat waters, located in Bintan, Riau Island, Indonesia. The statement from Malaysia’s policemen were “It happened inside Malaysia’s water (means Malaysia’s territory).” Based on that argument, three Indonesia’s officers until now arrests by Polisi Diraja Malaysia (Malaysia’s Policemen Unit).

World don’t have to wait too long for the angers, protesters from mass organization named “Bendera (Benteng Demokrasi Rakyat)” threw some dirts to Malaysia Embassy in Jakarta soon after the arrests, and also burnt up the Malaysian flag (Jalur Gemilang Flag). And as a response, press in Malaysia took the issue as a headline.5 Foreign Minister of Malaysia, Anifah Aman, commented on the protest, said, “Bendera wants to have our citizens’ head cut bald and send them home. This is an insult not only for Malaysians, but those Indonesians who are against the violent measure.”

Why Indonesians were madly attacked the embassy and urge the government under Tun Abdul Razak to apologize? First, the incident was happened inside Indonesia’s water, not Malaysia’s territory, so the arrests of three Indonesia’s officials were hardly accepted. Second, the Malaysian sea patrol gave a warn shot before getting the Indonesia’s officers being handcuffed and arrested. It’s violating the Indonesia’s sovereignty!

Looking back at these two countries maritime conflicts, these are some points where the disputes arised:

a)Malacca Strait
b)The South China Sea
c)The Sulawesi Sea
d)Bintan, Riau Island

Marty Natalegawa, Indonesia’s Foreign Minister said in Jakarta, “Malaysia is considered too often violate the sovereignty of Indonesia.” This statement based on official report which shows that in 2010, there were about 14 times offences commited by Malaysia, where 10 times violation by entering Indonesia’s territory, occurred in three different locations : Natuna Island, The Strait of Malacca, and the latest one, Bintan.

Speaking about ‘sovereignty’, in United Nations Charter, article 2 (4), stated:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”

Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations:6
“Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity……”
“No territorial acquisition resulting from the threat or use of force shall be recognized as legal…”

(?) How much the marine conflict between Indonesia and Malaysia affects the bilateral relationship among them?
When Malaysian sea patrol arrests three Indonesia officers within Indonesia jurisdiction (territory), three things occurred:

1)Malaysia claimed the territory of Indonesia as their territory (The acquisition). In International Law context, there are special rule governing this issue:
“Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”7
Every State has a FULL SOVEREIGNTY within their territorial sea, including Indonesia and the Tanjung Barikat in Bintan, Riau Island.

2)Malaysia sea patrol arrests three Indonesian officers within Indonesia’s sea territory while the officers were working at their regular basis.
Article 2 (3) of ICCPR (International Covenant on Civil and Political Rights) stated :
“Each State Party to the present Covenant undertakes: (1) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (2) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authorities provided for by the legal systems of the State, and to develop the possibilities of judicial remedy; (3) To ensure that the competent authorities shall enforce such remedies when granted.”

3)Malaysia are not welcoming the idea of apologizing to Indonesia government, they rejected any idea of wrongdoing by Malaysia sea patrol, even after Marty Natalegawa claimed Tanjung Barikat as Indonesia territory
Even if Malaysian government claiming in a future about the usage of ‘Right of innocent passage’8, Indonesia government should reject the arguments regarding the points stated in Article 19 (2) of UNCLOS 1982:
“Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a)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 the Charter of the United Nations;
(b)Any exercise or practice with weapons of any kind;
(c)Any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d)Any act of propaganda aimed at affecting the defence or security of the coastal State;
(e)The launching, landing or taking on board of any aircraft;
(f)The launching, landing or taking on board of any military devices;

3.Dispute Resolution (is it Already Defined as a Dispute?)

The dispute settlement provisions in the 1982 United Nations Convention on the Law of the Sea are remarkable for their detail and variety. When a dispute arises, the parties must ‘proceed to an exchange of views regarding its settlement by negotiation or other peaceful means’, those peaceful means might be established in advance by agreement between them. Only where settlement is not possible by means chosen by the parties to the dispute would the elaborate dispute settlement provisions of the 1982 Convention come into play.

(2)The International Tribunal for the Law of the Sea9
(3)The International Court of Justice
(4)Arbitral Tribunals

“But don’t misunderstand. Once again, if it pertains to our fundamental interests, our sovereignty and our territory, we should of course do what we have to do. There is no compromise.”11 Yudhoyono on Cabinet Meeting, August 30th.


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