Source: The Jakarta Post
Gosong Niger: Another Ambalat?
I Made Andi Arsana and Clive
Schofield, New South Wales, Australia
It seems that conflicting claims concerning international
boundaries between Indonesia and Malaysia will continue unabated.
One very prominent case emerged last year over the Ambalat offshore
area and it led to serious tension. While negotiations on Ambalat
are still underway, another issue regarding the status of something
called Gosong Niger has come to the fore.
The first critical questions to raise are: where and what is Gosong
Niger? It is located approximately 5.5 nautical miles off the
terminus of the Indonesian (Kalimantan) and Malaysian (Sarawak)
land boundary at Tanjung Datu on the South China Sea coast of the
island of Borneo. Gosong Niger is, in fact, a submerged ridge of
alluvial sand in shallow water, and indeed the term "Gosong"
equates to the English word "sandbar".
It is, therefore, neither an island nor even a low-tide-elevation,
but instead a permanently submerged area of approximately 50 square
kilometers stretching from west to east (Tempo, February 2006).
Thus, Gosong Niger, cannot generate maritime claims itself, instead
falling within the territorial sea claims of Indonesia and
Malaysia, which both extend out to 12 nautical miles from the
coast.
The next question: Is there already a boundary line in place? The
answer to this question is both yes and no. In 1969, Indonesia and
Malaysia did conclude a maritime boundary agreement, including a
segment extending north from Tanjung Datu. This boundary line
divides Gosong Niger with approximately two-thirds of the sandbar
lying on the Indonesian side of the line. Ownership over Gosong
Niger therefore seems clear as there is a precise boundary line
dividing it.
However, the 1969 agreement only divided the continental shelves of
the two countries and there has been no agreement concerning
delimitation of Indonesia and Malaysia's respective territorial sea
claims within which Gosong Niger surely falls. It is important to
note here that the United Nations Convention on the Law of the Sea,
to which both countries are parties, clearly states that the
continental shelf is a zone which extends beyond a coastal state's
territorial sea. Furthermore, the 1969 boundary treaty between
Indonesia and Malaysia provides that the agreement "shall not in
any way affect future agreements, which may be entered into between
the two governments relating to the delimitation of the territorial
sea boundaries" between them.
It therefore seems that regardless of the 1969 boundary line
extending from Tanjung Datu, there is still some uncertainty as to
the location of the boundary between Indonesia and Malaysia
immediately offshore, including in the vicinity of Gosong Niger.
Additionally, there is further uncertainty regarding the water
column as no exclusive economic boundary (EEZ) has been agreed
upon. A further complication is the fact that the UN Convention
favors equidistance as the boundary for the territorial sea unless
"historic title or other special circumstances" dictate otherwise.
The 1969 continental shelf boundary in this area is, however, known
to be a negotiated line of equidistance in Malaysia's favor.
The dispute first flared when a fishing boat belonging to the West
Kalimantan Office of Marine Affairs and Fisheries was conducting a
survey in the vicinity of Gosong Niger, approximately 0.7 nautical
miles in to the Malaysian side of the 1969 seabed boundary line.
The Royal Malaysian Navy suspected that the Indonesian vessel was
guilty of trespassing. However, as there has been no agreement
dividing the water column and the territorial sea boundary remains
undelimited, it is difficult see what infringement the Indonesian
vessel was guilty of (especially if it was not interacting with the
seabed).
Subsequent reports have indicated that Malaysian Navy has been
conducting patrols around Gosong Niger and has denied access to the
area to Indonesia's traditional fishermen who appear generally
unaware that the area is at least partially claimed by Indonesia,
not least because they can see a Malaysian ship moored near Gosong
Niger almost every day. Additional media reports have claimed that
Malaysia also uses the area for aqua-tourism activities. The
precise location and nature of these operations, for instance,
whether they include interaction with the seabed, are
unknown.
It therefore appears that Malaysia, or at least the Royal Malaysian
Navy, regards the 1969 boundary line as the boundary for all
maritime zones, including the water column and perhaps for the
territorial sea as well.
Some commentators in Indonesia have likened the Gosong Niger issue
to the Sipadan and Ligitan case as well as the Ambalat dispute
between the two countries, raising concerns that Malaysia will
eventually secure sovereignty over Gosong Niger because it has
demonstrated more effective occupation and administration over the
sandbar. Unlike in the Celebes Sea, however, there is no dispute
over territory in the vicinity of Gosong Niger and a seabed
boundary agreement is in place. Nonetheless, there is a danger that
accepting the course of the seabed boundary as the limit for
enforcement of all maritime zones, will eventually equate to a de
facto boundary, making it very hard for either side to assert a
claim beyond that line. Fundamentally, this is of more concern to
Indonesia than Malaysia as the seabed boundary lies well to the
west of the equidistance line to Malaysia's advantage. Indeed,
analysis shows that the "extra" area that Indonesia could
potentially claim beyond the current seabed boundary up to the
median/equidistance line amounts to approximately 24,000 sq.
km.
It seems that international boundary disputes continue to plague
Indonesia and capture public attention. Gosong Niger is merely the
latest episode. It seems likely that similar issues will arise in
the future. Thus, while it is understandable that the government is
focused on pressing issues such as the economy, corruption and
mitigating natural disasters, nevertheless, continued vigilance is
required in order to safeguard national sovereignty/sovereign
rights and international boundaries.
I Made Andi Arsana is a lecturer
at the Department of Geodetic Engineering, Gadjah Mada University,
who currently is a research student at the University of New South
Wales, Australia. Clive Schofield is a senior lecturer in the
Centre for Maritime Policy, University of Wollongong, New South
Wales.