31 March 2012

Six Indonesian fishermen stand trial

The Jakarta Post - Made Andi Arsana, Jakarta | Mon, 03/12/2012 9:03 PM - Six Indonesian fishermen were to recently stand trial in Timor Leste "for breaching the neighboring country's maritime territory" (The Jakarta Post, Jan. 13). One immediate question that arises in relation to the news is whether or not Indonesia and Timor Leste have settled their maritime boundaries?

The next question would be that if the two countries had yet to settle their maritime boundaries, how can one judge that the fishermen crossed a border?

Put simply, if the two countries had settled their maritime boundaries, it would not be difficult to judge whether or not the fishermen had committed a border crossing. The term "crossing" can only be used if there is a fence in place.

It is worth noting that Indonesia has yet to settle maritime boundaries involving more than 20 segments in 15 different locations. Interestingly, even in areas where maritime boundaries have yet to be settled, fishermen are often captured for border crossing. This naturally begs a question "why?"

According to the United Nations Convention on the Law of the Sea in 1982, each coastal state is entitled to maritime zones adjacent to its land territory, the breadth of which is measured from baselines (usually coastlines).

The zones are territorial seas, contiguous zones, exclusive economic zones (EEZ), and continental shelves (seabeds). Where the breadth of the maritime area between two states is reasonably narrow, they need to share maritime areas by conducting maritime delimitation to settle maritime boundaries.

This can be done through bilateral negotiation or with the help of third parties. Settled maritime boundaries clarify the extent of the coastal state's entitlements and obligations regarding maritime areas adjacent to its land territory.

Maritime boundaries also serve as virtual fences by which border crossing conducted by fishermen is justified.

Settling maritime boundaries is by no means an easy job to accomplish. It may take decades to settle maritime boundaries between countries. While the 1982 Law of the Sea convention clearly defines the extent of the maritime area coastal states are entitled to, it does not specify delimitation methods in the case of overlapping EEZs or continental shelves between two countries, for example.

Articles 74 and 83 of the convention simply require the reaching of an "equitable solution" that can sometimes be interpreted liberally. As a result, negotiations can go on for a very long time without achieving any agreement.

Prior to negotiating the final delimitation, each party in question has usually made its unilateral claim or declaration on maritime boundaries. It is not a surprise that the two unilaterally claimed boundary lines do not coincide.

It is more often than not that the two different boundary lines generate maritime areas claimed by both countries, often referred to as an overlapping claim area. Both countries view that they are entitled to the overlapping area. In practice, both have different maps showing their unilateral claims.

To strengthen the claim, each party (country A and B, for example) usually imposes maritime patrols based on its unilateral claim. Whenever fishermen from country A come to the overlapping area, the patrolling officers of country B regard the activity as an encroachment, and vice versa.

The fishermen can be captured or chased away. In other words, border crossing in this regard is an activity conducted by fishermen from one country based on their country's unilateral claim but they are captured by the patrolling officers of a neighboring country simply because each uses different maps.

The second example is a seizure of fishermen around the area where maritime boundaries have been settled but where the boundaries are only for sea beds. It is worth recalling that maritime boundaries for different zones of jurisdictions cover different layers.

While territorial sea boundaries, for example, delimit seabed, water column and airspace above the water, continental shelf boundaries only divide seabeds.

Indonesia and Malaysia, for example, have settled continental shelf boundaries in the northern part of the Malacca Strait but have yet to settle boundaries for their EEZ. Consequently, seabeds have been clearly divided but the division of water columns has yet to be made clear.

In the area, there is no fence for water columns so no one can tell whether or not a fishing vessel has committed a border crossing.

Why are both Indonesian and Malaysian fishermen often captured in the area? Each country has its unilaterally claimed EEZ boundaries, generating an overlapping area. Malaysian fishermen coming to the area will be captured by an Indonesian patrolling officer, and vice versa.

What to do to solve the issue? The first and foremost action must be to accelerate maritime boundary delimitations between Indonesia and its neighbors, which certainly requires the expertise of lawyers, surveyors and others.

It is evident that Indonesia has been reasonably active in approaching its neighbors. However, maritime boundaries are a bilateral process. Willingness has to come from both sides. Second, provisional agreements can also be an alternative before a final agreement is achieved.

This may include provisional arrangements on how to deal with fishermen entering the overlapping area. Alternatively, such overlapping areas can be sterilized from any activities to prevent clashes and tensions.

It seems that Indonesia and Malaysia have made good progress on how to deal with fishermen issues. On Jan. 27 the two countries signed on a memorandum of understanding (MoU) "in respect of the Common Guidelines concerning the treatment of fishermen by maritime law enforcement agencies" of both countries.

Article 3 of the MoU asserts that in an incident of encroachment by fishermen, both countries agreed to inspect and request to "leave the area". This "shall be conducted promptly toward all fishing boats, except for those using illegal fishing gears, such as explosives, electrical and chemical fishing gears".

Following this good example, Indonesia should ideally sign similar agreements with other neighbors. With that, fishermen entering overlapping maritime areas will not be captured but will be assisted to return to the waters of their respective countries. Let us now see how such an agreement is implemented.

The author is a lecturer at the Department of Geodetic Engineering, Gadjah Mada University.
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